Restoring the Voting Rights Act: Protecting the Native American and Alaska Native Vote

By Sheila Quinlan, CILS Escondido Office Staff Attorney

Early November is election season nationwide.  While blatant, state-sanctioned barriers to voting for Native Americans ended more than 50 years ago, many barriers—whether intentional or accidental—still hamper access to voting for many native communities.  In some places, ill-intentioned state legislatures take advantage of structural deficiencies in Indian country to suppress the native vote.  Poor roads, remote residences, and lack of access to reliable transportation, for example, can make it challenging for voters on reservations to make it to far-flung polling places off reservations to cast their ballots.  State mandates that require identification with residential addresses pose barriers to many reservation residents who may not have physical addresses.

Recently, Senator Ben Lujan, a Democrat from New Mexico, introduced legislation, the Native American Voter Protection Act, that would seek to promote and protect the Native American vote.  Some key features of the proposed legislation include requiring that states offer on-reservation early voting, registration, and polling places along with drop boxes for ballots, and that they accept tribal identification cards as a valid form of voter identification.  The proposed legislation also bans states from placing a cap on the number of ballots collected on Indian tribal lands, allowing organizations to help deliver ballots for tribal members on reservations who may live far from polling places and lack mailboxes at their homes.

During a recent hearing of the Senate Judiciary Committee’s Subcommittee on the Constitution, Senator Richard Blumenthal, a Democrat from Connecticut, highlighted that one million eligible Native Americans are not registered to vote.  He described the proposed legislation as a means of imposing accountability on public officials whose actions often have a disparate impact on Native American voters.  One witness at the hearing described a polling official’s decision not to put a polling place on a reservation, as she did not want to “catch COVID on the reservation.”  In fact, COVID-19 case numbers were comparable on the reservation as compared to the broader surrounding communities in which the polling official worked.   Witnesses at the hearing also emphasized the importance of the legislation in light of the Supreme Court’s recent erosion of the 1965 Voting Rights Act in Brnovich v. Democratic National Committee (2021) 594 U.S. ___ and Shelby County v. Holder (2013) 570 U.S. 529.

On October 5, 2021, the Senate introduced a modified John R. Lewis Voting Rights Advancement Act, which incorporated the Native American Voting Rights Act (NAVRA) as part of the bill.  The aim of the broader John R. Lewis Voting Rights Advancement Act is to restore key provisions of the now-eroded Voting Rights Act of 1965.

Unfortunately, due to political gridlock and a deeply divided Senate, on November 3, 2021, a Republican filibuster blocked both debate and a vote on the legislation.  While the Act had majority support in the Senate, the vote fell short of the needed 60 votes to advance over Republican opposition.  Despite the setbacks, one still hopes that in the case of voting rights, as Martin Luther King, Jr. noted, “The arc of the moral universe is long, but it bends toward justice.”

Efforts to protect the Native American vote are a topic currently on President Biden’s agenda.  Earlier this year, he established a Native American Voting Rights committee.  The committee will produce a report next spring outlining recommendations for protecting the Native American vote.  The committee held several tribal consultations throughout the year addressing difficulties in voting that tribes and tribal members may have faced.  The committee also sought to collect ideas for remedying any challenges faced in voting.  The President’s Committee is still accepting written comments until November 12, 2021, at consultation@bia.gov.

Resources

  1. https://www.calindian.org/california-native-voter-guide-2020/
  2. https://www.hoganlovells.com/en/publications/hiltime-with-hilary-tompkins
  3. https://www.judiciary.senate.gov/meetings/restoring-the-voting-rights-act-protecting-the-native-american-and-alaska-native-vote
  4. https://www.npr.org/2021/10/20/1040238982/senate-democrats-are-pushing-a-voting-rights-bill-republicans-have-vowed-to-bloc
  5. https://www.nytimes.com/2021/10/20/us/politics/senate-voting-rights-filibuster.html
  6. https://www.politifact.com/article/2021/oct/11/whats-voting-rights-bill-named-john-lewis/
  7. https://www.brennancenter.org/our-work/court-cases/shelby-county-v-holder
  8. https://www.narf.org/senate-testimony-voting/
  9. Addressing Barriers to Native American Voting Rights: A Tribal-Federal Roundtable Discussion https://www.youtube.com/watch?v=Jh0ITcYBQ3M&t=12s
  10. https://vote.narf.org/wp-content/uploads/2020/06/obstacles_at_every_turn.pdf
  11. https://www.hcn.org/articles/indigenous-affairs-law-6-things-you-should-know-about-the-2021-native-american-voting-rights-act
  12. https://www.narf.org/brnovich/
  13. https://www.pbs.org/wgbh/americanexperience/features/vote-overcoming-barriers-for-native-american-voters/
  14. https://thehill.com/homenews/senate/577643-senate-will-vote-on-john-lewis-voting-bill-as-soon-as-next-week
  15. https://www.congress.gov/117/crec/2021/11/01/167/191/CREC-2021-11-01-pt1-PgS7535.pdf
  16. https://www.narf.org/voting-tribal-consultation/
  17. https://www.nytimes.com/2021/11/03/us/politics/senate-republicans-voting-rights-act.html

 

Say Thank You to Your Lawyer

For those who want to make an impact, contact your lawyer and let them know how much you appreciate them for what they do every day. Just one phone call or email can serve as a reminder that their long hours and dedication to justice aren’t without their rewards! You can send us an email at info@calindian.org, and we will pass it on to our lawyers.

Honoring Indigenous Peoples’ Day on Capradio

Today on Insight With Vicki Gonzalez, we’re honoring Indigenous Peoples’ Day, the challenges of becoming a federally recognized tribe, the history of two-spirit members within tribal and indigenous communities, and much more.

Featuring CILS Executive Director Heather Hostler.

https://www.capradio.org/news/insight/

Indigenous People’s Day

The holiday formerly known as Columbus Day is now celebrated as Indigenous People’s Day. The day acknowledges North America’s Indigenous people’s struggle for rights, recognition, and reparations since 1492.

All people can become vocal allies and directly support initiatives that improve the lives of Indigenous peoples today. Here are five ways you can put your money—and your time—into Native and Indigenous communities this year.

https://www.realsimple.com/work-life/money/how-to-put-your-money-back-into-native-communities-on-indigenous-peoples-day

 

Respect for California Tribal Court Orders and Avenues for Tribes to Purchase Land

By Kia Murdoch, CILS Sacramento Office Staff Attorney

CILS has been tracking bills in the California legislature that are relevant to our community. In July 2021, two bills passed that are exciting steps forwards for California tribes:

AB 627

Tribal Courts in California decide various cases, including family law cases such as dissolution of marriage, and issue orders regarding child support, spousal support, and the division of assets and benefits. Specifically, a Tribal Court may order the division of retirement benefits and other deferred compensation benefits. However, before the passage of AB 627, there was no federal or state law requiring a state court to recognize and enforce the Tribal Court on the division of these orders. Additionally, employers were not required to abide by a Tribal Court order regarding the division of retirement benefits unless a state court granted recognition and enforcement to the Tribal Court order. This bill created several problems for tribal members who chose to file their divorce in their Tribal Court: (1) the process to petition the state court to request recognition and enforcement of such a Tribal Court order is expensive and often takes months to resolve; and (2) state courts could decide not to recognize the Tribal Court order, forcing the parties to have to file a new divorce petition in state court to address the limited issue of dividing retirement or deferred compensation benefits.

AB 627, signed into law on July 9, 2021, established procedures for California courts to recognize Tribal Court family law orders involving the division of retirement and other compensation benefits. This means that the process to have a Tribal Court order regarding the division of benefits recognized in state court will be much simpler, more efficient, and less expensive.  This bill significantly reduces the burden on tribal members who need to enforce a Tribal Court order regarding the division of retirement benefits. It is also an important step in further validating the role of Tribal Courts in resolving family law issues for their members.

Now that AB 627 is signed into law, the Judicial Council of California will be creating state court forms that tribal parties can fill out and jointly file to obtain recognition of their Tribal Court family law order by a state court.

AB 1180

Before the passage of AB 1180, any local agency able to acquire and hold land (such as cities, counties, housing authorities, etc.) was able to transfer anything deemed “exempt surplus land” to another local, state, or federal agency. AB 1180 added federally recognized Indian tribes to the definition of agencies who may purchase “exempt surplus land.”

This bill is a major step for federally recognized California tribes, providing a meaningful avenue for acquiring lost ancestral territory. Local agencies must take inventory once a year of any land it holds in surplus. They are encouraged by law to dispose of surplus land by making it available for public entities to purchase through specific procedures outlined in the Surplus Land Act. However, local agencies can also designate land as “Exempt Surplus Land,” which can be bought by a small list of local, state, or federal agencies without going through the purchasing procedures under the Surplus Land Act.

Adding federally recognized tribes to the list of agencies who may purchase “Exempt Surplus Land,” AB 1180 has made it significantly easier for Tribes to buy land from local agencies. Thanks to the efforts of Tule River Tribe, the primary sponsor, and source for AB 1180, the bill was signed into law on July 9, 2021.

Other Bills We Are Watching

The following bills are still in the Legislature, but if passed, will affect California Tribes:

  • AB 516: Proposes excused absences for students to attend cultural ceremonies or events.
  • AB 798: Adds federally recognized Indian tribes to the list of public agencies that own and operate ambulances, allowing tribes to certify and license their ambulances and ambulance drivers. Under this law, tribal ambulances and drivers will no longer be subject to inspection and approval by California Highway Patrol or treated as privately-owned ambulances.
  • AB 873: Eliminates the tribe’s share of costs related to agreements between CDSS & tribal child welfare services, making agreements that include access to federal funding (such as Title IV-E) more accessible to tribes.
  • AB 945: Proposes creating a Task Force to study how to comprehensively implement all aspects of existing law related to wearing traditional tribal regalia or recognized objects of religious or cultural significance as adornment at school graduation ceremonies.
  • SB 712: Proposes to prohibit local governments from adopting or enforcing a resolution or ordinance that would prohibit the local government from conducting a fair evaluation of a fee-to-trust application by a federally recognized tribe based on the merits of the application.