North Dakota tribal court asked to allow absentee voting

FARGO — The Mandan, Hidatsa and Arikara Supreme Court will decide whether to reject a longstanding requirement that tribal members who live outside the reservation must physically return to vote in tribal elections.

Plaintiffs in the case argue that the requirement is not only unfair and a violation of their rights but also places nonresident voters at risk of getting infected by the coronavirus, giving fresh urgency to deciding a voting policy that has been in effect since 1986.

Oral arguments will be presented to the three-member court via web conference Wednesday, June 3, a social distancing accommodation to prevent spread of the highly contagious coronavirus.

Ray Cross, an enrolled member of the Three Affiliated Tribes who lives in Tucson and one of the plaintiffs in the case, said previous appeals to the tribal council to end the voting requirement were ignored.

“It’s been a long struggle,” he said Monday. “I think it’s due to the quiescent attitude of tribal members. It takes a lot to make them upset.”

The vast majority of the tribe’s members reside off the reservation, according to the tribe’s enrollment figures.

The Three Affiliated Tribes had 16,609 enrolled members, according to the tribe’s 2019 enrollment report, with 5,725 living on the Fort Berthold Indian Reservation in western North Dakota and 11,284, or 68%, living off the reservation.

Many nonresident tribal members are not able to travel to vote in tribal elections because they have physical disabilities or other health problems, are serving in the military, attending college or cannot get away from work or family responsibilities, Cross said.

That violates their constitutional rights to due process and equal protection under the law as guaranteed by the tribe’s constitution and the Indian Civil Rights Act of 1968, said Cross, a professor emeritus at the University of Montana School of Law and former attorney for the tribe.

Also at issue is whether the COVID-19 pandemic creates a “new and substantial burden” on nonresident members’ exercise of their voting rights, he said.

Many members who claim to live on the reservation actually live in Bismarck and Mandan but maintain a post office box on the reservation, Cross said.

“It’s a notorious open secret,” he said.

Ryan Dreveskracht, a Seattle lawyer who represents the tribe, said the voting requirement for nonresident members to return to the reservation was added by amendment to the tribe’s constitution.

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“The fact that it’s in the constitution makes it binding on everyone,” he said. “It’s the supreme law of the land” and an “oxymoron” to argue that something that is part of the constitution is unconstitutional, Dreveskracht said.

“You don’t challenge it in the court,” he added, but work to change the constitution.

The requirement to vote apparently was added after scandals in the late 1970s involving allegations that some made fraudulent use of absentee voter rolls, Cross said.

The tribal council is deaf to appeals to remove the requirement and allow absentee voting by nonresident voters, he said, because it allows council members to win office with minority support.

“This has been a tool of having a minority government,” he said.