Indian country voting rights

1. Should this Court vacate the Eighth Circuit’s decision under United States v. Munsingwear, Inc., 340 U.S. 36 (1950)? 2. Are state legislators absolutely immune from civil discovery, including from producing documents and communications that involved or were shared with third parties, or is the state legislative privilege a qualified one, based on principles of comity, that yields where important federal interests are at stake?

Lower court materials here.

Split Eighth Circuit Panel Shields Communications between North Dakota Legislators and Constituents that Probably Shows Racial Animus against Native Voters

June 6, 2023Matthew L.M. Fletcher

Here are the materials in In re: North Dakota Legislative Assembly:

Opinion

Petition for Writ of Mandamus

Turtle Mountain Opposition

The underlying case is here.

Student Note on Native Voting Rights

February 9, 2023Matthew L.M. Fletcher

Noelle N. Wyman has published “Native Voting Power: Enhancing Tribal Sovereignty in Federal Elections” (PDF) in the Yale Law Journal. Here is the abstract:

Members of tribal nations are disproportionately burdened by barriers to voting, from strict voter identification and registration requirements to inadequate language assistance and inaccessible polling locations. Restrictive voting laws are on the rise, while the avenues for challenging them under the prevailing model of voting rights are narrowing. This Note advocates for a different approach to conceptualizing and combatting Native American voter suppression.

First, it advances a new jurisprudential theory centered on tribal sovereignty: suppressing the Native vote not only denies rights to individual citizens but also denies sovereign power to tribes. Historically, states required Native American people to renounce tribal membership, culture, and lands to vote. Today, states and localities continue to denigrate tribal sovereignty in the administration of elections, such as by rejecting tribal-issued IDs and interfering with tribes’ organization of their own political communities. Apart from securing the fundamental rights of individual Native citizens, Congress has a substantive duty to secure tribal sovereignty in federal election administration that is rooted in its trust obligation to tribes.

Second, this Note proposes a new legal framework for enhancing Native voting power: Congress should require states and local election officials to negotiate with federally recognized tribes toward the formation of tribal-state compacts governing federal election administration in Indian Country. This framework would relieve tribes of the burdens that they currently carry to initiate collaboration with local election officials, fill gaps in voter assistance, and challenge unlawful voting restrictions in court. Meanwhile, it would involve tribes in the process of lawmaking and regulation, enabling them to exert a measure of sovereign power over federal elections in Indian Country.