The Suppression of Voting Rights in Indian Country

Volume 25, No. 2 - Winter 2013
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Thomas Shortbull (right), president of Oglala Lakota College, and Brendan V. Johnson, United States Attorney for the District of South Dakota, lead the procession during OLC’s 2013 commencement.

Indian people, like other minorities in this country, have been victimized by states seeking to suppress the impact of their vote. One way states do this is through gerrymandering, which divides a large minority population from a particular geographical area into multiple voting districts. Gerrymandering has been used against the Lakota people in South Dakota for many years.

I became aware of the practice of gerrymandering against Lakota people when I was the executive director of the Task Force on Indian–State Government Relations from 1973 to 1975. The task force studied the problems between Indian tribes in South Dakota and the state government, such as tribal taxation, hunting and fishing rights, water rights, cross-deputizing state and tribal law enforcement officers, recognition of tribal court orders, and voting rights. In 1973, the state legislature approved seven bills, the most important of which allowed for tribal-state tax collection agreements, free license plates for tribal programs, and the exemption of tribal programs from state sales and fuel taxes.

The following year, I authored a task force report exposing gerrymandering in southwestern South Dakota: voters on the Pine Ridge and Rosebud reservations should have been included in one voting district, but were instead divided up into three voting districts, effectively diluting the Indian vote. I recommended that the two largest counties— Shannon on the Pine Ridge reservation and Todd on the Rosebud reservation—be combined into one voting district.

For political reasons, the task force did not present my recommendation to the state legislature. However, my proposal for creating a voting district with a large Lakota population did become a reality. In 1980, the U.S. Justice Department required the State of South Dakota to create a legislative district that encompassed both Shannon and Todd counties, resulting in a district consisting of nearly 86% Indian voters. In addition, South Dakota had to abide by Section 5 of the Voting Rights Act, which required voting jurisdictions to show that any modifications in their voting practices did not have a discriminatory purpose or effect. As a result of these changes, I was elected the first state senator in this newly created legislative district and the first American Indian state senator to represent Indian reservations in South Dakota.

In the 2005 case, Bone Shirt v. Hazeltine, I was called as an expert witness to help create a second legislative district in southwestern South Dakota. The U.S. District Court ruled that the State of South Dakota was in violation of the Voting Rights Act because the voting district that included the Pine Ridge and Rosebud reservations had an excessive number of Indian people. The court concluded that there should be two districts in the area, with a majority of Indian people in each district. As a result of the Bone Shirt decision, the state created another legislative district in southwestern South Dakota. It was the Voting Rights Act that allowed Indian people to challenge South Dakota’s suppression of the Indian vote.

That same year I took an active part in helping to reauthorize the Voting Rights Act. I was featured along with Black, Hispanic, and Asian elected officials in a video about the need to protect the voting rights of minorities in the United States. In 2006, the U.S. Congress reauthorized the Act. Then, in February 2013, the U.S. Supreme Court heard oral arguments for the case Shelby County v. Holder, in which the plaintiffs sought to eliminate an integral part of the Voting Rights Act. Shelby County (Alabama) and others argued that Section 5 of the Act was no longer necessary because states had independently implemented all the provisions needed to protect minority voting rights.

I took a strong position that the U.S. Supreme Court must uphold Section 5, because clearly some states will seek to suppress the voting rights of Indian people and other minorities. For example, in recent years certain states have required photo identification at the polls, in an effort to make it more difficult for some people to vote—with the greatest hardship falling on minorities. In addition, there have been cases in South Dakota and Montana where Indian people have been denied early voting opportunities and voting at satellite polling places.

On June 25, 2013, the U.S. Supreme Court issued its controversial 5–4 decision on Section 5 of the Voting Rights Act. The Court ruled that the formula used to determine which states must get approval from the Justice Department before implementing any new voting measure—also known as pre-clearance requirements—must now be determined by a new act of Congress. The practical effect of this decision is that it has gutted Section 5 from being an effective tool for overturning overt efforts to suppress minority rights.

The Shelby ruling is also a disingenuous Supreme Court decision. The court could have ruled that Section 5 was no longer applicable, but instead left it up to Congress. I strongly believe that the net effect of the court’s decision will be a denial of the enforcement of Section 5, as there is now a strongly divided Congress and little possibility that it will pass legislation establishing which states are required to go through pre-clearance on voting rights issues.

Representative John Lewis, the famous civil rights leader who marched with Martin Luther King Jr., has also expressed his displeasure for the Shelby decision. “I think what the Court did today is stab the Voting Rights Act of 1965 in the heart,” Lewis said. “It took us almost 100 years to get us where we are today, so will it take another 100 years to fix it?” The Supreme Court’s ruling is a major setback for this country, as it will adversely affect the voting rights of minorities in the United States—including Indian people in Indian Country. Many minority and civil rights organizations have vowed to restore what has been lost with the Shelby decision.

We can start by electing more minorities to office so they can fight institutional racism. Racism towards Lakota people has long been prevalent in South Dakota. One glaring example is when a South Dakota governor did away with an Indian scholarship program in the 1970s. When a Native college student wrote him a letter questioning the matter, he responded that the State of South Dakota did not give scholarships to Jewish physicists, Italian pianists, or Black half-backs and therefore did not need to do so for Indian college students.

We can work to overcome institutional racism in South Dakota by electing more Indian people to local and state government. With more minorities serving in these bodies, racism can be challenged and hopefully diminished.

Thomas Shortbull (Lakota) is president of Oglala Lakota College.

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