Native vote champions challenge state electoral district maps

MISSION, S.D. – “Anpetu wasté.” The senators and representatives on South Dakota’s Legislative Redistricting Committee heard these words from one end of the state to the other during six field hearings in October. The Lakota phrase for “good day”  prefaced testimony from Native constituents engaged in a quest to attain elections fair to the Northern Great Plains’ largest minority population.

American Indians, who make up that demographic in South Dakota, North Dakota, and Montana, summoned 20 years of voter rights organizing to defend historic gains during the 2021 legislative district remapping exercise. Native elected leaders and community advocates locked step to crash barriers obstructing tribal representation in state and federal contests.

“By working together, we hope to achieve fair representation for Native Americans,” Oglala Sioux President Kevin Killer testified to the committee. The head of the largest tribe in South Dakota, he encouraged consultation between state and tribal lawmakers. He called for field hearings on all nine reservations in South Dakota. “These hearings would allow tribal members and other residents of the reservations to explain the unique challenges our communities face and how they might best be represented not just in the redistricting process, but in other areas as well,” Killer said.

The U.S Constitution mandates a population count every 10 years for the express purpose of adjusting voting district boundaries to reflect demographic shifts and allot public funds fairly. The 2020 Census results launched the latest legislative redistricting. The headcount, meant to cover every resident in the United States, initially raised Native voter hopes of better representation in state politics after showing a 160-percent population increase in the latest census results.

By the Census Bureau’s own account, Native people, especially on reservations and in Alaskan villages, have been historically undercounted in the decennial survey. This time around unforeseen circumstances compounded an existing legacy of disenfranchisement.

The Covid-19 pandemic marred the census process in more ways than one. It induced quarantines on Indian reservations, which kept census takers at bay. The public health crisis forced the survey to start late, truncating the enumeration, tally, and analysis nationwide.

When the Census Bureau released the districting analysis in August instead of April, the legal deadline for much of the remapping was only about three months away — five months less than usual. A 2021 spike in latecomer virus victims squelched plans for redistricting proposal hearings on many reservations. The combined effect abridged Native participation in the apportionment activity, according to those involved.

Pandemic protocols

Oglala Lakota citizen and District 27 Rep. Peri Pourier described “the undercount of the Pine Ridge Reservation” to the committee. The reservation “was supposed to get eight enumerators to help with the count. When it came down to it and they started hitting the go button, we only received six enumerators. Pine Ridge Reservation: That’s over 2.6 million acres, the size of Connecticut.”

Pourier noted that follow-up house calls did not take place at many residences as they did off-reservation. The census showed South Dakota’s four main reservation districts dipping below the 25,333 ideal number of residents to create an equal amount in each of the state’s 35 districts.

The redistricting committee responded with map proposals that would add non-Indian voters to the mix in all four. However, committee members — aware that Native voters have elected several tribal citizens to the statehouse on the basis of the existing reservation districts — expressed caution about diluting the Indigenous vote. The committee this year consists of seven senators and eight representatives, two of whom come from reservation districts.

Listen to the audio clip to hear S.D. Rep. Liz May address decennial redistricting and tribal communities within her state.

Committee leader Sen. Mary Duvall told Buffalo’s Fire that the state must base redistricting solely on the census numbers or risk being charged with violating the Constitution. Tribal leaders argued that the committee has wiggle room and could justify preserving Native majority districts that appear undersized.

The Census Bureau’s own most recent American Community Survey reflects higher American Indian numbers than the decennial count, they noted. That survey was the basis for the most recent pandemic relief distribution, the American Rescue Plan, after tribes rejected previous census-based bailout formulas.

“Covid created a perfect storm as it pertains to the census,” said Rosebud Sioux tribal citizen and Tribal Redistricting Subcommittee Chair Sen. Troy Heinert. “We know that there are more people that live on our reservation lands. I will maintain that we should respect that and take our chances in the court,” the Senate Minority Leader of District 26 told Buffalo’s Fire.

Standing Rock Sioux tribal citizen Kellen Returns From Scout, financial manager of the Great Plains Tribal Chairmen’s Association testified against holding strictly to census results. “I understand that this body cannot do anything about the collection techniques, nor the fact that the census dropped the ball on their update. But what this committee can do is consider this information as part of our compelling argument to protect our minority voting rights,” he said.

“Providing tribal communities with adequate opportunities to offer testimony is critical in this process,” he added. “There was Covid and we had to stop some of the planned testimony.” When tribal governments reinstated lockdowns, they ended up with only one reservation field hearing — on Rosebud.

Returns From Scout defended the existing reservation districts. “I am here to urge you to keep the current boundaries of Districts 26A, 28A, 27, and 26 intact in whatever redistricting plan you ultimately select. All four are well-established majority Native districts. Each was drawn either by this Legislature or the federal courts to ensure that South Dakota has met its obligations under the Voting Rights Act,” he said.

The Voting Rights Act of 1965 strengthened the U.S. Constitution’s 15th Amendment by banning voting practices that “discriminate on the basis of race, color, or membership in one of the language minority groups.”

Rosebud Sioux Tribal President Scott Herman testified, “Despite the substantial undercount of Native populations in the 2020 Census, these districts can remain within the population deviation permitted under federal law.” He reminded committee members that the state Legislature directed 2021 apportionment to provide for “protection of communities of interest.”

A community of interest, a group of people with a common set of concerns that, may be affected by legislation. Examples are ethnic, racial, and economic groups. South Dakota is one of 24 states where the Legislature must consider communities of interest when approving electoral districts. He was among tribal leaders who insisted the committee abandon its discretionary rule limiting each district to no more than a 5-percent deviation from the population mean.

They favored a deviation of up to at least 10 percent between the smallest and largest districts, as permitted by constitutional and judicial precedent. For example, if the ideal district size was 10,000, a 10-percent deviation would allow a 3-percent smaller district of 9,700 and a 7-percent larger district of 10,700.

Tribal officials of the 26 Native nations in the Northern Great Plains region received a boost from local and national groups joining the drive for parity.

O.J. Semans, co-executive director of South Dakota’s Native-led Four Directions non-profit, refreshed committee members’ memories about two decades of Indigenous electoral mobilization. He highlighted passage of the Help America Vote Act in 2002, federal court fights, election board participation, legislative committee input, advising the South Dakota Secretary of State, and ongoing negotiation. It resulted in “some really positive changes for Indian country,” he said. “We enabled more Native Americans to participate in the vote.”

A citizen of the Rosebud Sioux Tribe, Semans warned committee members at the hearing on his reservation that any effort to dilute the Native vote in new districts would lead to “great resistance from the tribes, the tribal leaders, and the citizens within those districts.”

Four Directions attracted support from the Native American Voting Rights Coalition, NAVRC. The group includes national partnerships with the Native American Rights Fund, NARF; National Congress of American Indians, NCAI; ACLU’S Voting Rights Project; Lawyers Committee for Civil Rights; Fair Elections Center; and Western Native Voice.

Meanwhile, NCAI joined eight organizations in the CHARGE, Coalition Hub Advancing Redistricting & Grassroots Engagement. Alliance organizers said they stand “committed to empowering people who have intentionally been excluded from voting and electoral politics to have a seat at the redistricting table.”

State-level grassroots leaders who joined the cause include adherents of the Očéti Šakówiŋ Caucus, He Sapa Voter Initiative and NDN Collective in South Dakota; North Dakota Native Vote; and Indigenous Vote, previously known as Montana Native Vote.

“We are all united around the common goal that redistricting must be transformed to allow more voices to participate, be heard, and ultimately be represented,” said CHARGE organizers.

Slippery slope

The faculty-led Princeton Gerrymandering Project has long-since flagged South Dakota, North Dakota and Montana as states “raising issues of fair representation under the Voting Rights Act and the Constitution” due to a significant Native American population.

In 2001, South Dakota legislators drew a map that lumped together Pine Ridge and Rosebud reservations’ voters in a single district. ACLU litigation in federal court achieved two districts for the majority Native constituency. Yet the road to Indigenous integration in electoral politics remains strewn with exclusionary tactics.

It wasn’t until 1924 that the Indian Citizenship Act extended voting rights to all Native Americans born within the United States. That was four years after women – non-Indians, that is – gained access to the ballot box. Natives had to wait until the 1940s before they were allowed to vote in South Dakota.

Ten years after the 1965 Voting Rights Act passed, Congress finally approved an amendment to include American Indians. Then-South Dakota Attorney General Bill Janklow advised the Office of the Secretary of State to disregard key provisions aimed at reducing discrimination.

Room for engagement

Case law has established that discrimination led to depressed political participation among Indigenous voters in South Dakota and Montana. Likewise, case law rejected both states’ defense that Native involvement lagged due to apathy or disinterest. Instead, a lack of political participation existed because of structural exclusion, according to The Voting Rights Act in Indian Country: South Dakota, A Case Study, published by Laughlin McDonald in the American Indian Law Review.

“We are grounded in the reality that, as important as this process is, redistricting is not at the top of most people’s minds and we need to build points of entry that meet people where they are,” said the CHARGE, voting rights coalition. When the Rosebud Reservation field hearing took place on Oct. 11, Native American Day in South Dakota – the second Monday of October — the descendants of the state’s first people did not fill a meeting room.

“It’s just an uphill battle,” said Rep. Liz May, a redistricting committee member from Pine Ridge Reservation. She said it’s important to teach voting rights in schools and be involved in politics at the local, state and federal level. “You just got to keep telling the story over and over and over again.”

Talli Nauman is an editor at Buffalo’s Fire. To reach her, email buffalo.gal10(at)gmail.com