Secretary of State Agrees to Settle Voter ID Lawsuits by Entering Into Consent Decree with North Dakota Tribes

In the wake of the district court’s denial of the State’s motion to dismiss, the Secretary of State has agreed to settle two federal voting rights lawsuits brought by two Native American Tribes and several individual voters over North Dakota’s voter ID law.

The law requires voters to present identification listing their residential street address – a substantial hurdle for many Native Americans living on reservations, because the state has failed to assign residential street addresses to homes on tribal reservations.

In January 2016, eight Native Americans, represented by the Native American Rights Fund (NARF), Tom Dickson and Rich de Bodo filed suit to block the North Dakota voter ID law, which disenfranchised Native American voters and violated both state and federal constitutions as well as the Voting Rights Act.

On October 30, 2018, NARF, Campaign Legal Center (CLC), Robins Kaplan LLP, and Cohen Milstein Sellers and Toll PLLC filed a separate lawsuit on behalf of the Spirit Lake Tribe and six individual plaintiffs to ensure that eligible Native American voters residing on reservations in North Dakota would be able to cast a ballot in the 2018 midterm elections and in all future elections. The Standing Rock Sioux Tribe, with approximately 5,868 residents of voting-age that could be affected by the law, joined the Spirit Lake case in early 2019.

“This fight has been ongoing for over four years, and we are delighted to come to an agreement that protects native voters,” said Matthew Campbell, attorney for the Native American Rights Fund.  “It has always been our goal to ensure that every native person in North Dakota has an equal opportunity to vote, and we have achieved that today. We thank the Spirit Lake Nation, Standing Rock Sioux Tribe, and the individual native voters that stood up for the right to vote.”

“We are pleased with the result of the settlement. It was a breakthrough for the state to recognize its responsibility to ensure that Native Americans have access to the identification needed to exercise their voting rights,” said Paul Smith, vice president at CLC. “In order to have a successful 2020 election, the state must follow through with a robust voter and poll worker education campaign to ensure that proper protocols are followed so people aren’t rejected because of the state’s failed addressing system.”

Backstory

Facing a trial date in the Spirit Lake case in May of this year, the Secretary of State announced an emergency rulemaking last week in an attempt to address some of the issues raised by the lawsuit. At an in-person mediation at the North Dakota capitol on February 6, 2020 with representatives from the Spirit Lake Nation and attorneys from CLC and NARF, the Secretary agreed to take additional steps to ensure that eligible Native American voters are not disenfranchised due to the restrictive voter ID law.

Because of the state’s broken addressing system, many Native Americans living on reservations do not have or do not know their residential addresses, and are therefore unable to comply with the North Dakota voter ID law. During the 2018 election, the Spirit Lake Nation and the Standing Rock Sioux tribe expended substantial resources to ensure that their tribal members would have the identification necessary to vote, including by shouldering the burden of identifying and providing residential street addresses for their members.

The unique burdens faced by Native Americans in North Dakota – including a severe housing shortage – mean that tribal members are much more likely to have moved in the intervening time, or to be homeless or precariously housed. As a result, determining members’ residential addresses – and providing them with the documentation necessary to vote – is an ongoing effort that requires substantial resources.

Details of the agreement

In addition to the previously announced rulemaking, which requires the state to recognize tribal IDs and supplemental documentation issued to tribal members, the Secretary has agreed to enter into a binding consent decree, enforced by a federal court order, which will ensure that Native American voters who do not have or do not know their residential street address are able to vote.

The Secretary of State also agreed to work with the Department of Transportation to develop and implement a program with tribal governments to distribute free non-driver photo IDs on every reservation statewide within 30 days of future statewide elections.

In the 2020 election, Native American voters will have the opportunity to mark their residence on a map, a process that is commonly used by voters in other states. The burden will then shift to the state to verify the residential street addresses for these voters, to provide that information to the voter and the tribe, and to ensure those voters’ ballots are counted.

The court-ordered consent decree will include details about what the state must do to educate the public and train poll workers on the new procedures, as well as measures designed to enable the Tribes to ensure the state is complying with its obligations under the agreement.

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[Click here to read a joint statement on the settlement by North Dakota Secretary of State Al Jaeger, Spirit Lake Nation, and Standing Rock Sioux Tribe]

ICWA QEW Opinion in the Minnesota Supreme Court

Opinion

The question of what Qualified Expert Testimony (QEW) actually is under ICWA comes up all the time. The Minnesota Supreme Court did a pretty deep dive into what it means in terms of termination of parental rights, and concludes,

Read straightforwardly, the statute provides that to terminate parental rights, a district court must determine that “continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. 1912(f). This determination must be supported by evidence “beyond a reasonable doubt,” and part of the supporting evidence must be QEW testimony. Id. The statute is unambiguous.

. . .

The parents . .  suggest that the statute requires that the QEW testify specifically that “continued custody . . . is likely to result in serious emotional or physical damage.” 25 U.S.C. § 1912(f).  . . . If Congress wanted to impose a requirement that the expert utter a “magic phrase,” it could have done so. But as written, neither ICWA nor MIFPA require a specific QEW opinion that “continued custody . . . is likely to result in serious emotional or physical damage.” 25 U.S.C. § 1912(f); Minn. Stat. § 260.771, subd. 6(a). S

Accordingly, we conclude that in a termination proceeding governed by ICWA and MIFPA, a court cannot terminate parental rights unless it determines that evidence shows, beyond a reasonable doubt, that continued parental custody of the child is likely to result in serious emotional or physical damage to the child. That determination must be supported by QEW testimony.

Because the QEW admitted on the stand that she focused most of her testimony and affidavits on the mother (who was a tribal member) and not the father (who not an enrolled tribal member in any tribe), the court held her testimony did not support the termination as to father.

I get questions pretty frequently about QEW, QEW training, and whether a person should be a QEW. My answer is almost always the same–a QEW must be comfortable stating that the parental rights should be terminated, or that these children should be put in foster care. That information is what is required by statute, and why the state (or party seeking removal/termination) must put a QEW on the stand. The QEW is ultimately there to testify against the parents, regardless of any other testimony they may proffer.

Eighth Circuit Affirms Indian Country Assault Convictions

Here is the opinion in United States v. Rainbow.

An excerpt:

Christopher Rainbow (Christopher) and Jordan Rainbow (Jordan) were found guilty of assault with a dangerous weapon and assault resulting in serious bodily injury, both in violation of 18 U.S.C. §§ 2, 113, and 1153. On appeal, they argue that the district court erred in admitting into evidence certifications of Indian blood and 1 in denying their requests to instruct the jury on lesser-included offenses. Jordan also argues that the district court erred in asking certain questions of a doctor who treated the victim and that the evidence isinsufficient to support his convictions. We affirm

Press Release on “Spirit Lake Child Welfare Improvement Project”

Here is “Tribal, National, and State Leaders Convene to Develop Strategy for Improving Spirit Lake Child Protection — Director of Bureau of Indian Affairs, representatives from North Dakota’s elected leaders, and others join Spirit Lake Chairman in new initiative to improve child welfare services.”

Federal Circuit Affirms Council for Tribal Employment Rights v. United States Without Opinion

Here is the order.

Briefs and lower court materials here.

WaPo Story on Native Youth Suicide

Here. An important read.

Federal Circuit Briefs in Council for Tribal Employment Rights v. United States

Here:

CTER Brief

US Brief

CTER Reply Brief

Lower court materials here.

Spirit Lake Employee Group’s Contract Claims against Feds Dismissed

Here are the materials in Council for Tribal Employment Rights v. United States (Fed. Cl.):

1-Council for Tribal Employment Rights Complaint

25-US Motion to Dismiss

46-Council Response

48-Council Motion for Partial Summary J

49-US Reply

53-US Opposition

DCT Order Dismissing Complaint

An excerpt:

Council for Tribal Employment Rights (“Council”), a national intertribal nonprofit organization which represents the employment interests of certain Indian tribes, seeks $500,000 in damages for the alleged breach of two agreements which involved the Council, the Office of Indian Energy and Economic Development (“the Office”), a component of the Bureau of Indian Affairs (“the Bureau”), U.S. Department of the Interior, and the Spirit Lake Tribe (“Spirit Lake” or “the Tribe”), a federally recognized Indian tribe. Both agreements were executed as amendments to an existing contract between the Office and Spirit Lake. The first, Amendment 2, involved the provision of funds to support a Native Construction Careers Initiative (“NCCI”) commercial construction training program, and called upon the Council to conduct the training program. The second, Amendment 6, allocated funds to support training projects approved by the Federal Highway  Administration (“FHWA”). The statement of work for that Amendment referenced an FHWA training program agreement which contemplated that the Council would provide training to develop certain certification programs for road construction activities.