Excerpted From: Torey Dolan, Congress' Power to Affirm Indian Citizenship Through Legislation Protecting Native American Voting Rights, 59 Idaho Law Review 47 (2023) (373 Footnotes) (Full Document Requested)


ToreyDolanDuring a meeting of the Lewis and Clark County Republican Central Committee in Montana, a Republican staffer to a state representative (with political aspirations of his own), Drew Zinecker said, “If the reservations want to say they are independent countries ... but they want a lot of handouts, why are we counting their ballots?” The staffer, when asked to expand on his perspective on tribal sovereignty and the right to vote after the meeting doubled down and said, “It's a very consensus opinion among conservatives that if the tribes want to continue to assert their sovereignty, that draws into serious question whether they should be allowed to vote or not.” He later clarified that his comments pertained to state elections, not federal, because, “we can only deal with the state,” adding, “I just want them to go ahead and be Montanans.” Implying that Indians can have their sovereignty, or be Montanans, but not both.

Zinecker's comments reflect a centuries-old perspective: tribal sovereignty, tribal citizenship, and the intertwined rights thereof are incompatible with American citizenship, state citizenship, and American suffrage. Although most of the public no longer see American citizenship and Indian status as fundamentally at odds, this view is deeply rooted in American law and endures into this post-Indian citizenship period. Consequently, it has bled into the administration of state and federal elections and contributes to the modern disenfranchisement of NativeAmerican peoples. This is done through the targeted disenfranchisement of tribal communities or intentional neglect thereof. State political subdivisions regularly deny the ability, or responsibility, to serve reservation-based voters due to tribal territorial sovereignty. States also fail to contribute to on-reservation physical infrastructure on par with off-reservation infrastructure. This lack of investment further alienates NativeAmerican voters on reservations lacking equitable access to roads, public transportation, mail, internet, and other basic services.

This disenfranchisement renders the promises of the Indian Citizenship Act, and other laws and treaties conferring citizenship, painfully hollow. Despite Congress' ability to act, Congress has not done so. Adding to the already existing disenfranchisement, the Supreme Court's wounding of the Voting Rights Act in Shelby County v. Holder and Brnovich v. Democratic National Committee have added significant barriers to Tribes succeeding in litigation.

This article argues that Congress not only has the power to pass comprehensive legislation that protects the rights of NativeAmericans to vote in state and federal elections based on history and law, but that Congress' trust responsibility also requires Congress to do so. This theory rests on the history of Indian naturalization and the role Congress has played in managing the political boundaries between Indians and states. More acutely, this article posits that Congress' longstanding history of granting Indian citizenship, the role that Congress has played in making Indians state citizens, and Congress' authority to manage the boundaries between Indians and states justifies Congress intruding on state sovereignty to protect the rights of Indian voters in state and local elections as well as federal elections.

Section I discusses the background of early conceptions of citizenship, Indian citizenship, and Indian suffrage. Section II discusses the current state of the Indian franchise. Section III discusses the contemporary relevance of distinctions between federal and state citizenship in voting. Section IV discusses the current doctrine on the right to vote. Section V discusses Congress' trust obligation to Indian Tribes and how issues of the Indian franchise fall under Congress' trust obligation. Section VI discusses Congress' positive grants of authority to pass legislation protecting the NativeAmerican right to vote. Finally, section VII attempts to predict likely challenges to such legislation and address each in kind.

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Congress' long history of conveying citizenship to Indian, both state and federal citizenship, and managing the boundaries between states and Indians demonstrates that Congress has always been integral to determining the belonging of Indians in the American body politic. While this power left AmericanIndians excluded from the benefit of American citizenship for centuries, the 1924 Indian Citizenship Act reflects a significant shift in the role in Indian politics and belonging. Yet states continue to undermine the rights of AmericanIndians as state and federal citizens through systemic and ongoing disenfranchisement. In light of the historic role that Congress has played in bringing Indians into the body politic, Congress is obligated under the trust responsibility to protect the right to vote of NativeAmericans through appropriate legislation. Congress has such authority under its traditional elections powers combined with its authority in Indian affairs. These combined powers give Congress the power to not only affirmatively legislate to protect the Native vote, but empowers Congress to protect the right of Native voters to exercise their rights as state and federal citizens by preempting state election law.

Native Vote Fellow, Indian Legal Clinic, Sandra Day O'Connor College of Law at Arizona State University, Arizona State University J.D., University of California at Davis, 2016. Citizen of the Choctaw Nation of Oklahoma.