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American Elections and Native Political Rights
Matthew L.M. Fletcher ∗
American Indians’ status as citizens of federal, state, and tribal nations has been riddled
with ambiguity since the Founding of the American Republic. This short paper surveys the
history and law of Native political rights in the American constitutional structure before
concluding with a discussion about special problems in tribal elections.
I.
Foundational Principles of Federal Indian Law
Federal Indian law in the United States has a long, complicated history that may
intimidate neophytes, but the entire field can be boiled down to three foundational principles, and
two modern concomitant principles.
The first foundational principle is that Congress has plenary power over Indian affairs.
The Constitution vests Congress with the power to regulate commerce with Indian tribes. Until
1871, the federal government usually dealt with Indian nations as a matter of foreign policy. The
President negotiated with Indian nations under the Treaty Power in the Constitution, with more
than 400 treaties ratified by the Senate and declared by the President.
The modern concomitant principle relating to Congressional plenary power is the federal
government’s trust responsibility to Indian nations and Indian people. The United States took
Indian nations in under its wing as inferior sovereigns, what Chief Justice Marshall once called
“domestic dependent nations.” The perceived dependency of the early 19th century became
actual dependency in the late 19th through the mid-20th centuries. Since at least the 1970s, the
federal government has engaged in a national policy of supporting tribal self-determination. The
∗
Professor of Law and Director of the Indigenous Law and Policy Center, Michigan State University College of
Law. Enrolled Member, Grand Traverse Band of Ottawa and Chippewa Indians. Appellate Judge, Grand Traverse
Band, Hoopa Valley Tribe, Nottawaseppi Huron Band of Potawatomi Indians, Poarch Band of Creek Indians,
Pokagon Band of Potawatomi Indians, and Santee Sioux Nation. This short paper is prepared for the University of
Texas/Mexican Electoral Tribunal Workshop (September 5-6, 2014). Thanks to Gerald Torres.
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trust relationship similarly has evolved from more of a guardian-ward relationship to something
akin to a common law trustee-beneficiary relationship.
The second foundational principle is that state law is inapplicable in Indian country.
Congress may expressly authorize states to assert jurisdiction in Indian country, and frequently
has done so in specific territories and for specific subject areas. Moreover, due to history and
shifting federal laws, Indian country boundaries often are no longer as clear-cut as they once
were. As a result, the modern analysis is much more complicated, often involving a balancing
test analysis determining whether federal and tribal interests preempt state law.
The third foundational principle is that the powers of Indian nations are inherent powers
of sovereignty not divested by Congress or by agreement. Tribal sovereignty is not granted by
the federal government, but limited sovereignty retained by Indian nations. Indian nations
exercise plenary power over their own lands and their own citizens, and limited authority over
nonmembers.
The last modern concomitant principle is that tribal sovereignty, jurisdiction, and
authority is retained absent a clear statement of intent by Congress to the contrary. This clear
statement rule derives from more than two centuries of treaty and statutory interpretation by the
Supreme Court, as well as the federal trust responsibility and the inherent tribal sovereignty
doctrine.
II.
American Indian Citizenship Law
The foundational principles of federal Indian law have directly affected American Indian
citizenship, voting rights, and political rights throughout American history. It is now well
established that American Indians are American citizens entitled to all of the privileges and
immunities enjoyed by all American citizens. But the United States did not grant citizenship to
most American Indians until 1924, and some states still did not allow American Indians to vote
as late as mid-20th century.
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Federal and state law relating to American Indian citizenship
and voting rights derives directly from two foundational principles –
Congressional plenary and exclusive authority to deal in Indian
affairs.
A.
Federal Constitution and Federal Law
From the Framing, the United States Constitution set aside
Indian people for purposes of apportionment as “Indians not
taxed.” 1 Indians were not “free Persons,” nor were they slaves (that
is, “all other Persons”). In Scott v. Sandford, the Supreme Court contrasted American Indians
with African-Americans, relying on this language to
conclude
that
Indians
could
theoretically
obtain
citizenship and voting rights through an Act of Congress,
but that African-Americans could not. Of course, Chief
Justice Taney stated it was not advisable in his opinion to
grant American Indians – who he believed were less than
human – citizenship and voting rights.
Even
after Reconstruction,
which
extended
citizenship to freed slaves, Indian people’s status
remained unchanged. Congress brought forward the same
language into the Fourteenth Amendment. 2 In Elk v. Wilkins, 3 the Court held that American
Indians born in Indian country may not acquire citizenship upon their birth under the Fourteenth
Amendment. In other words, American Indians could only acquire citizenship through an Act of
Congress.
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U.S. Const. art. I, § 2, ¶ 3 (“Representatives and direct Taxes shall be apportioned among the several States which
may be included within this Union, according to their respective Numbers, which shall be determined by adding to
the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not
taxed, three fifths of all other Persons.”).
2
U.S. Const. amend. XIV § 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.”).
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112 U.S. 94 (1884).
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During the latter half of the 19th century and the early 20th century, Congress provided
avenues for Indian people to acquire federal citizenship (state citizenship was a different matter)
in various Indian treaties and federal statutes. Usually, Congress tied citizenship to the
“civilized” status of American Indian individuals, and to the express relinquishment of tribal
membership and treaty rights.
In 1924, Congress extended American citizenship to all American Indians by statute. 4
Granting civilization to Indians by the shooting of their last arrow and the granting of a plow.
B.
State Constitutions and State Law
American Indian citizenship under state law was perhaps even more complicated than
under federal law. Some states authorized Indians to vote even before the Reconstruction, such
as Michigan, but imposed vague obligations on Indians based on the “civilized” character of an
Indian, whether the Indian was a ward of the federal government, or whether the Indian had
renounced tribal status or treaty rights.
In Michigan, for example, members of the Grand Traverse Band of Ottawa and
Chippewa Indians attempted to vote in an election in Bingham Township, Leelanau County in
the 1870s. Election officials turned them away because they could not prove they had renounced
their treaty rights to hunt and fish. For many decades that followed, states typically concluded
4
Indian Citizenship Act of 1924, 43 Stat. 253, codified as amended at 8 U.S.C. § 1401.
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that Indian people were “wards” of the United States or uncivilized – in both instances legally
incapable of voting.
By the early 20th century, the remaining states that resisted allowing Indians to vote
concluded that reservation Indians were not residents of the state in which the reservation was
located. In 1962, the New Mexico Supreme Court held that Navajo Nation members are entitled
to vote in state elections, 5 the last state to recognize voting rights for American Indians, rejecting
the residence claim.
Several counties in areas of high American Indian population and land ownership remain
covered by the Voting Rights Act and subject to suit.
III.
Tribal Elections
The authority of Indian nations to exercise their
inherent sovereignty to govern themselves is a well
established principle of American Indian law, generating
unusual and interesting controversies outside of the
American constitutional structure. Disputes arising from
tribal elections have created many of the most intractable
conflicts in Indian country during this modern era of self-determination.
Imagine a group of elected tribal officials facing re-election. The sitting tribal officials
lose the election, and claim the election was rigged against them. After the election results are
certified, the tribal officials refuse to step down, becoming a holdover council. There is no
federal or state court subject matter jurisdiction over the election dispute, 6 leaving tribal forums
as the exclusive jurisdictional entities capable of resolving the dispute. Many tribal forums are
hopelessly caught up in the local politics and cannot resolve the issue. International law forums
are not applicable for a variety of reasons. A few of these intra-tribal election disputes have
5
Montoya v. Bolack, 372 P.2d 387 (N.M. 1962).
Cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (no federal cause of action to enforce the Indian Civil
Rights Act); Williams v. Lee, 358 U.S. 217 (1959) (no state court jurisdiction over suits involving Indian defendants
for claims arising on reservation land).
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nearly become shooting wars, while a few dozen others have become legal and political
quagmires.
Professor and Tribal Judge Wenona Singel has proposed establishing intertribal dispute
resolution forums. 7 Professor Eugene Fidell has proposed the establishment of a national
American Indian Supreme Court. 8 Federal statutory fixes, including expanding state or federal
court jurisdiction, enacted under Congressional plenary power are also possible.
Yet internal tribal governance issues are often a direct result of a history of federal and
state intervention into tribal government structures. Most tribal governments are relatively new
to self-governing, and nearly all of them have adopted non-indigenous governance structures. I
would encourage Indian nations to explore alternative forms of government that draw more from
traditional or customary law.
For example, Michigan
Anishinaabe nations (Odawa,
Ojibwe,
and
Bodewadmi)
selected leaders for limited,
pragmatic purposes only. These
ogemuk (or ogimaag) served for
particular purposes, such as to
negotiate with other nations, or lead war parties. Day-to-day governance typically involved
complex person-to-person interactions conducted in accordance with the Seven Grandfather
teachings – Niizhwaaswi Mishomis Kinoomaagewinawaan.
The Grand Traverse Band of Ottawa and Chippewa Indians Election Board has codified
its reliance upon the Seven Grandfathers. 9 This may be an important example for other Indian
nations to consider.
Miigwetch.
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Wenona T. Singel, Indian Tribes and Human Rights Accountability, 49 SAN DIEGO L. REV. 567 (2012)
Eugene R. Fidell, An American Indian Supreme Court, 2 Am. Indian L.J. 1 (2013),
http://www.law.seattleu.edu/Documents/ailj/Fall%202013/Fidell-Final.pdf.
9
E.g., Raphael v. Election Board, No. 13-2189, at 6 (Grand Traverse Band of Ottawa and Chippewa Indians Tribal
Judiciary, May 21, 2014), http://turtletalk.files.wordpress.com/2013/05/raphael-final-opinion.pdf.
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