The Need for Federal Legislation to Address Native Voter Suppression
Native Americans, like other minority groups, continue to face racially-motivated disenfranchisement efforts. Watershed victories for equal access to the ballot—such as the passage of the Fifteenth and Nineteenth Amendments—did not affect Native Americans because, by and large, they were not considered American citizens until the Indian Citizenship Act was passed in 1924. The Act only nominally enfranchised Native Americans, however, given states’ use of a variety of disenfranchisement tactics. Early disenfranchisement tactics included literacy tests and facially-neutral laws that prohibited Native Americans from voting (e.g., denying the franchise to “Indians not taxed”). Modern disenfranchisement techniques include gerrymandering, vote dilution, and voter identification laws. These disenfranchisement techniques compound other barriers Native Americans face in voting, including geographical constraints, cultural differences, and longstanding Native exclusion from state economic and political life.
Tribes and tribal advocates have primarily used the Voting Rights Act to combat voter suppression. However, the Court’s decision in Shelby County significantly weakened statutory protections against voter disenfranchisement. Using litigation to ensure equal access to the ballot also has drawbacks: it is costly, time-consuming, and its results do not always provide lasting solutions. A legislative fix is needed to address the extensive barriers that Native Americans face in voting. However, given the states’ history of animosity toward tribes, this Article argues that the legislative solution must come from the federal government. Under the federal trust responsibility, the Elections Clause, and other constitutional provisions, Congress arguably has both the power and the obligation to enact voting legislation aimed at remedying Native voter suppression.
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