What stands in the way of Native American voters?
By Carrie Levine
FORT YATES, North Dakota — Two years ago, when Chase Iron Eyes decided to run for Congress, he knew he had, as he puts it, “a snowball’s chance in hell” of winning.
But Iron Eyes, a member of the Standing Rock Sioux Tribe, still saw the narrowest of paths to victory in the race for North Dakota’s sole congressional seat. If he and the two other Native American candidates running for state offices as Democratic nominees were able to boost Native American voter turnout while simultaneously convincing independent-minded undecided voters to break their way, he explained, he thought he might win.
Instead, incumbent Rep. Kevin Cramer, a Republican, coasted to another term by a huge margin.
Turnout in Sioux County, composed of the North Dakota side of the Standing Rock reservation, where Iron Eyes lives, ticked up slightly over the 2012 presidential election, yet the county still recorded the second lowest turnout in the state that year.
Standing Rock, 2.3 million acres sprawling across the North Dakota-South Dakota state line, is now known worldwide for the protests over the Dakota Access pipeline, which were ongoing in the period leading up to the 2016 elections.
But the advocates and celebrities who flooded into the region have nearly all left. And Standing Rock’s own energy and activism hasn’t translated to the ballot box, for reasons both recent and ancient.
Between 2008 and 2016, Sioux County averaged a voter turnout rate of 39.5 percent, the lowest among North Dakota’s 53 counties, according to a Center for Public Integrity analysis of data from the North Dakota secretary of state's office. Two other counties whose populations are majority Native American have the second- and third-lowest turnout in the state over the same period.
Standing Rock isone of six communities the Center for Public Integrity is profiling this month on the eve of a critical midterm election that will decide the balance of power in Washington. These communities are connected by their profound needs and sense of political abandonment at a time when President Donald Trump’s administration has declared the nation’s war on poverty “largely over and a success.”
There are many reasons why residents of Standing Rock don’t vote: the pressures associated with poverty, a sense of disenfranchisement and apathy, a lack of trust in government and politicians driven by unjust treatment of Native Americans over generations.
This election brings a new complication: The U.S. Supreme Court on Tuesday declined to stay a lower court ruling allowing the state’s voter identification requirements to go into force for the November election.
A lower court judge had previously found the North Dakota law’s requirements would disproportionately burden Native American voters, but last month, a federal appeals court ruled for the state. The appeals court ruling now stands.
That means the requirements in force for voters in November will be different than the ones that governed the June primary. Justice Ruth Bader Ginsburg, who with Justice Elena Kagan dissented from the majority, said she would have granted the stay because the “risk of disenfranchisement is large” and the change close to the election creates an “all too real risk of grand-scale voter confusion.”
The decision means thousands of Native Americans in the state — and hundreds on Standing Rock alone — will not be able to vote, the Standing Rock Sioux Tribe said in a statement.
“Why is it getting harder and harder for Native Americans to vote? This law clearly discriminates against Native Americans in North Dakota,” Standing Rock Sioux Tribal Chairman Mike Faith said. “Our voices should be heard and they should be heard fairly at the polls just like all other Americans.”
Low turnout among Native American voters in North Dakota in November’s critical midterm election would hurt U.S. Sen. Heidi Heitkamp, D-N.D., who’s facing a fierce challenge from Cramer.
Native Americans, at 5.5 percent of the population, are the state’s largest minority group — and in North Dakota, where only about 255,000 people voted in the 2014 midterm elections, every vote carries great weight. The website FiveThirtyEight.com recently calculated that each North Dakota voter has 30 times the likelihood of determining control of the Senate as the average American voter.
Residents here wrestle with high poverty rates, health problems, poor housing and a host of other problems that seem to make it all the more critical that they vote. But they don’t.
“We don’t see ownership in our own political futures,” said Iron Eyes, a lawyer and activist, adding that people are “more worried about what their kid is going to eat or whether their kid has school shoes or where they’re going to live that year.”
North Dakota’s U.S. Senate seat is crucial to Democratic hopes of regaining control of the Senate — and strong support from Native American voters, including the small cluster of voters on Standing Rock, helped clinch Heitkamp’s narrow victory in 2012, a presidential year.The latestpolls show Cramer leading Heitkamp. Native American voters could again play a pivotal role if this year’s Senate race is close.
But will they turn out?
Beautiful land, critical issues
Standing Rock is beautiful: rolling hills topped with cattle, horses and crops from corn to sunflowers. Everyone knows each other and many people are related somehow.
“We were given just a small bit of our original territory” for the reservation, said Danielle Ta’Sheena Finn, the tribe’s director of external affairs, but “I feel lucky every day to be where Standing Rock is. It has water, mountains and hills, the prairies.”
Because of the pipeline fight, which the tribe is continuing in court, “people will always remember that Standing Rock stands for good things, and even if we fail, at least we stood,” Finn said.
A tinge of celebrity surfaces from time to time: In August, Boston Celtics star Kyrie Irving and his sister, Asia, participated in a traditional Lakota naming ceremony at the tribal-owned Prairie Knights Casino, and crowds flocked to the event. The Irving siblings’ late mother, the child of a Standing Rock Sioux Tribe member, was adopted out of the tribe as a baby, and Irving reconnected with the tribe and his relatives after he tweeted his support of the protests against the pipeline. He has tattooed the Standing Rock logo on the back of his neck, and it is featured on the sneakers he designed for Nike.
Irving contributed $110,000 to the tribe for youth programs. Some will be used for drug prevention and education programs, and the rest will be distributed by the leaders of each of the reservation’s eight districts.
The pipeline has brought attention to the reservation, but it’s also overshadowed other critical issues. Standing Rock is a community where the job growth, rising wages and general economic prosperity frequently touted by Trump aren’t evident.
Brandon Mauai, a member of the tribal council, said the pipeline protests have been romanticized when “that’s just one of the fights” tribes face every day.
The percent of Standing Rockresidents living below the poverty line is nearly four timesthe rate for North Dakota as a whole, according to data tracked by the Center for Social Research at North Dakota State University.
The civilian unemployment rate in North Dakota is 2.8 percent, according to census data. In Sioux County, the rate is 19.7 percent.
In Corson County, the South Dakota side of the reservation, it’s nearly 30 percent compared with the South Dakota rate of 4.1 percent.
Finn said the tribe needs more resources for substance abuse treatment. In February, the tribe sued opioid manufacturers in federal court, alleging that manufacturers and distributors of opioids had fraudulently concealed the addiction risk of the drugs.
Bathrooms in the tribal-owned casino and lodge in Fort Yates have hard plastic boxes for the safe disposal of needles, an indicator of the prevalence of diabetes.
As for the casino itself, revenue plummeted thanks to the protests, forcing cutbacks to some tribal programs. It has since recovered somewhat.
Transportation is another obstacle. Mauai said much of the population doesn’t have access to a car, and bus service on the reservation is limited.
Housing has long been in short supply, a problem compounded by the lack of a bank, which also impedes economic development, said Kory McLaughlin, an at-large member of the tribal council. Wilbur Red Tomahawk, the former head of the tribal housing authority, recalled how, in years past, the tribe arranged to acquire and move houses (from an Air Force base in Grand Forks) and secondhand FEMA trailers (after a flood in Minot, North Dakota, for instance).
Nicole Archambault, the owner of the Hawk’s Corner, a convenience store in the town of Cannon Ball, North Dakota, began cashing small checks for customers as a courtesy — mostly small-dollar checks received as door prizes or incentives.
Many customers don’t have checking accounts, she said. But her bank in Bismarck required her to ask people cashing checks for ID, even those she knew, but she found many customers didn’t have any, or didn’t carry it — a sign they might have trouble voting.
From behind the counter in the store this summer, Archambault said she has struggled to keep it open.
As summer ended, she and her husband, former tribal chairman Dave Archambault II, shut down the business. It had been a decision she described, her voice breaking a bit, as “really tough for me.”
‘I was just angry that I didn’t get to vote’
North Dakota has long been an easy state in which to vote, and it is the only state that does not require voter registration.
Until the state Legislature passed a new voter identification law in 2013, shortly after Heitkamp’s narrow victory, the law offered so-called failsafes for voters who didn’t have necessary identification showing a residential street address: A poll worker who knew the voter could vouch for them, or the voter could sign an affidavit attesting to their right to vote in the precinct.
Among other changes, the new law, which lawmakers said was needed to combat voter fraud, more strictly limited the acceptable forms of identification people could use to vote and eliminated the failsafes. It required voters to have identification that included a residential street address.
Phyllis Young, 70, a Standing Rock elder and longtime activist who said she always votes, recounted in an interview how in 2014, toward the end of the day, she went to the courthouse in Fort Yates to vote.
She showed poll workers officials her U.S. passport, which she said she had used in the past.
They showed her a document that stated passports weren’t on the list of acceptable voter identification — and they turned her away.
“I was just angry that I didn’t get to vote,” Young said.
The lady in front of her in line also lacked identification and was turned away, said Young, currently the recipient of a Massachusetts Institute of Technology fellowship for a project to improve energy efficiency on the reservation.
In January 2016, a group of Native American plaintiffs, members of the Turtle Mountain Band of Chippewa,represented by the Native American Rights Fund, sued the state over the law. They challenged the need for identification carrying a residential street address — reservation addresses are often post office boxes. North Dakota has five federally recognized tribes. They also argued that the law’s requirements would disproportionately affect Native American voters who are less likely to possess, or be able to easily obtain, such IDs.
For example, the complaint noted, the mean travel distance for voting age Native Americans living on Standing Rock to a site where they could obtain a North Dakota driver’s license or non-driver state identification was 61 miles.
Lawyers representing North Dakota Secretary of State Al Jaeger’s office have said the state is not trying to keep Native Americans from voting and the purpose of the law is to make sure legitimate votes aren’t diluted by ineligible voters.
Faith has a driver’s license with a street address on it, but he says many people don’t. He somewhat sheepishly acknowledged that somehow, he got bogged down and failed to vote in the June primary — but he heard of others getting turned away.
When that happens, he said, “They walk off and you’ll probably never get that person to the polls again.”
Like many, Faith said he believes the state Legislature passed the voter identification law because Native American voters boosted Heitkamp over her Republican opponent. “My honest opinion — I really strongly feel that way,” he said.
He said he’d like to boost the reservation’s tepid turnout, perhaps by aligning the timing of tribal elections with federal and state elections, but many on Standing Rock aren’t engaged with federal politics. Despite the impression people elsewhere may have formed of the reservation in the wake of the protests, Faith points out many protesters were from elsewhere.
In August 2016, U.S. District Judge Daniel Hovland issued a preliminary injunction against the law, finding that “the undisputed evidence before the Court reveals that Native Americans face substantial and disproportionate burdens in obtaining each form of ID deemed acceptable under the new law.”
The law “imposes ‘excessively burdensome requirements’ on Native American voters in North Dakota that far outweighs the interests put forth by the State of North Dakota,” Hovland wrote, adding there was “a total lack of any evidence to show voter fraud has ever been a problem in North Dakota.”
The state Legislature amended the law and, earlier this year, the state asked that part of Hovland’s injunction be lifted; Hovland found the new law still disadvantaged Native Americans and kept a limited stay in place allowing the use of identification bearing mailing addresses. He also found many weren’t aware of the law’s requirements.
The state appealed, and on Sept. 24, a three-judge panel of the 8th U.S. Circuit Court of Appeals stayed part of Hovland’s injunction, placing the residential street address requirement back in force for November’s election.
In a 2-1 decision, the panel found the state was likely to succeed on the merits of the suit, and would suffer irreparable harm without a stay if voters use mailing addresses to vote in incorrect precincts.
“If any resident of North Dakota lacks a current residential street address and is denied an opportunity to vote on that basis, the courthouse doors remain open,” Judge Steven M. Colloton wrote in the majority opinion.
Voters who do not have the required identification can still supplement what they do have with other documents, such as a paycheck or utility bill that have a residential street address, or documents issued by a tribal government. Failing that, voters can cast a “set aside” ballot, but must return within six days and present sufficient identification for it to be counted.
In a statement after the 8th Circuit ruling, Matthew Campbell, a lawyer with the Native American Rights Fund who represented the plaintiffs, said the group is “disappointed” with the decision.
“The court acknowledged that thousands of Native American voters will not be able to vote under the State’s system,” he said. “North Dakota’s voter ID laws require voters to provide forms of identification that many Native Americans voters do not have and cannot obtain.”
On Sept. 28, the plaintiffs filed an emergency appeal to the U.S. Supreme Court, requesting a stay of the 8th Circuit ruling. On Oct. 9, the court denied the request.
In an e-mailed statement to the Center for Public Integrity after the ruling, Jaeger said his office will continue working with tribal leadership “so that they may assist their members in obtaining the necessary ID, for those who do not already have it.”
OJ Semans, co-executive director of Four Directions, a South Dakota-based group that advocates for Native American voting rights, said his group is in the early stages of reaching out to the North Dakota secretary of state’s office and to the leadership of tribes in North Dakota, including Standing Rock. He said he wants tribal officials to be present at polling places, able to issue required documentation, including residential addresses, on tribal letterhead at the polls to voters who need it.
Standing Rock will send out drivers on Election Day to help bring people to the polls and is offering to help people obtain addresses and updated identification in the interim, the tribe said in a statement.
On a hot Tuesday night in July, about a dozen people filtered into the A.J. Agard Building, in the Long Soldier district on the reservation, to play bingo — a fundraiser for this year’s celebration powwow.
They did not want to talk about politics. Or voting. At least not with their names attached.
“When people are running for Senate and coming here, people feel they don’t keep their promises,” said one woman softly, from behind the counter where she was selling popcorn and drinks. “People don’t go to vote because they don’t trust the government.”
The distrust stems from broken treaty obligations, from the taking of the Black Hills in the 19th century. People here are not far removed from a time when children were taken from their homes,sent to boarding schools and punished harshly for speaking their own language or celebrating their culture. Others remember when tribal members were forced out of their homes decades ago and thousands of acres of prime land on the reservation were flooded, part of the Pick-Sloan Project on the Missouri River.
The state’s handling of the protests over the pipeline — hundreds were arrested in confrontations that sometimes turned violent — and the Trump administration’s decision to allow the pipeline to go ahead eroded further what trust existed between people who live here and the state and federal governments.
Almost everyone on the reservation can tell you the Dakota Access pipeline route was originally proposed to pass near Bismarck, but it was rerouted out of fear that it would pass too near the community’s water supply. Instead, its path leads it just outside the reservation — but across ancestral Sioux land, and under the Missouri River, Standing Rock’s main water supply.
Former U.S. Sen. Byron Dorgan, a Democrat who represented North Dakota for decades until he decided against running again in 2010, said the pipeline protests “became a rallying point for a couple of hundred years of issues for the Native American people with broken treaties and broken promises. It became something more than just a pipeline.”
Gov. Doug Burgum, a Republican who took office in December 2016, has won plaudits for quicklymeeting withthe tribes, includingon Standing Rock reservation. In his first State of the State address last year, he pledged “a fresh start in our relations with all tribal nations who live with us and among us.” Scott Davis, the executive director of the state Indian Affairs Commission and a member of the Standing Rock Sioux, last Januaryorganized a conference in Bismarck on improving relationships between state, federal and tribal governments.
Dave Archambault II, the immediate past tribal chairman of the Standing Rock Sioux Tribe, said poverty everywhere leads to a loss of hope and apathy — a sense that no matter what people do with their vote, it doesn’t matter, though he insists it does. On Standing Rock and other reservations, “the federal government created laws and acts that put us in the situation we are in today.”
Asked about the Senate race, he said, “I would hope that [voters] would take a look at both candidates and see which is better for tribal nations.”
As for Heitkamp’s relationship with Standing Rock? It dates back decades to her time as a state official, and she has a long history of attending powwows and other events.
In numerous interviews in the summer and early fall, several Standing Rock residents said they were disappointed that Heitkamp didn’t take a strong stand opposing the pipeline during the protests. Some said it had dampened their enthusiasm for her re-election bid, though none expressed any support for Cramer.
In a July interview, Young was critical of the senator. “She blindsided us,” she said. “It was always the lesser of two evils, but where do we go now?”
Still, Young said in a September follow up, “We have to vote and exercise our vote.”
Finn, who once interned in Heitkamp’s office, said that in early September, there was some discussion of whether the tribal council should publicly consider a resolution endorsing Heitkamp, but after talking to council members, Faith ultimately decided not to bring it forward.
“As a tribe we can’t do it as one voice right now,” Finn said.
Several people also said they balanced the pipeline issue against her efforts in other areas. Interviewees brought up many of the things Heitkamp herself highlights: her advocacy for the welfare of Native children, legislation to improve how law enforcement keeps track of missing and murdered indigenous women, and her work on housing issues and a tribal land buyback program. Some also credited her with obtaining federal dollars for school construction on Standing Rock.
“All of these good things were pushed aside,” Red Tomahawk said, in a July interview outside the community center in Porcupine, a small town on the reservation whose welcome sign announces “Pop. 152.”
In the 1990s, Randal White Sr. said, he and his family held a traditional ceremony bringing Heitkamp into their family. At one point, a plaque commemorating the ceremony hung in the Porcupine Community Center, White and others said, though it wasn’t there in July and no one seems to know where it went.
“I felt let down by Heidi,” White said softly, referring to the pipeline issue, “but she still has my support because I know she’d come here if we asked her to come here. Big high officials don’t come to Porcupine very often... I hope that people get out and remember people like Heidi that would come here when you ask her.”
In October, the Standing Rock Sioux Tribe hailed Heitkamp’s vote against confirming Brett Kavanaugh, Trump’s nominee for the Supreme Court.
‘Our most fundamental right as Americans, our right to vote’
U.S. Sen. John Hoeven, the North Dakota Republican who’s chairman of the Senate Indian Affairs Committee, and Heitkamp, a member of the panel, were both present for a committee roundtable in July on voting rights, access and barriers in Indian Country, at which experts testified on the barriers facing Native American voters, including discrimination.
At the beginning of the roundtable, Hoeven said tribes and states must work together to improve access to polls. “This cooperation will help ensure that Native Americans have an equal opportunity to participate in our most fundamental right as Americans, the right to vote,” Hoeven said.
Heitkamp, who has been an outspoken critic of North Dakota’s voter identification law, brought up the issue of the residential address requirement at the roundtable, and said states have to do a better job inviting Native Americans to vote.
“Why should we have to sue in North Dakota every year to get voting rights for native people?” she said, adding, “All the problems of poverty are overlaid on this problem of voting rights.”
Heitkamp’s congressional office said the senator was not available for an interview, but provided background on her legislative work: She introduced legislation that would require state officials to establish polling locations, including early voting locations on reservations upon request by a tribe and require states to recognize tribal identification for voting purposes, among other things. In May, together with four other Democratic senators, she sent a letter to the U.S. Department of Justice requesting information on its efforts to ensure Native American voting rights.
In October, she and a dozen other Democratic senators introduced Native American voting rights legislation.
In a statement in response to questions from the Center for Public Integrity regarding her work on issues affecting Indian Country, Heitkamp highlighted her work on voting and also on behalf of Native American women and children, calling challenges facing Native American children “one of the greatest injustices in our country.” She noted that the first bill she introduced as a senator created a Commission on Native Children.
“But there’s still so much work to do and these issues are some of my top priorities in the Senate,” Heitkamp said in the e-mailed statement. “I also consider educating other senators about these challenges as one of my key roles in the Senate — that way we can help prompt the Senate to prioritize policies impacting Native communities.”
Cramer’s congressional office did not respond to emails and phone calls from the Center for Public Integrity requesting an interview. It also did not provide requested information about Cramer’s position on the voter identification law and his work on tribal issues while in office. Tim Rasmussen, communications director for Cramer’s Senate campaign, declined an interview request via email and did not respond to follow-up questions.
Cramer’s congressional website shows that together with Hoeven, he sponsored some Native American-related legislation, including a bill requiring background checks for adults in tribal foster care homes. He also has touted somegrants for North Dakota tribes.
What do they have to lose?
Heitkamp’s campaign said it is working with the state Democratic-Nonpartisan League party to mobilize Native American voters on the state’s tribal reservations. Tom Bryant, who oversees the party’s fieldwork and direct voter contact work, said the party now has eight paid staff members working on Native American outreach and voter turnout, more than ever before. The party is also recruiting volunteers to help knock on more doors and provide rides to the polls.
In September, the Democratic-NPL party began running ads on reservation radio stations describing acceptable forms of voter identification, and stressing the ability to use tribal IDs or supplemental documents such as pay stubs or utility bills that include a street or mailing address. Bryant said similar ads will run in reservation newspapers.
Marlo Hunte-Beaubrun, the organizer for the Democratic-NPL party on Standing Rock and a former candidate for statewide office herself, said she hears the complaints about Heitkamp’s pipeline stance, and in the past, she has been outspoken about her own disappointment.
But, she said, she wants voters to turn out for all the Democratic candidates on the ticket, not just the Senate race, and she believes Cramer is a far worse alternative for Standing Rock.
“We would be in even more trouble,” Hunte-Beaubrun said. So when she talks to voters who complain about Heitkamp’s stance on the pipeline issue, she said, she listens — then tells them that, and the reasons why. And because distrust of the system runs deep, she said, “they’re more apt to listen to someone who is a tribal member than someone who is not.”
Republicans have Trump, who romped to victory in North Dakota in 2016. At a rally in Fargo, North Dakota, last month, campaigning for Cramer, he appealed to Native American voters to support Cramer, saying Heitkamp had done little to improve their lot.
“What do you have to lose?” Trump asked.
“Almost everything,” Dorgan, who backs Heitkamp, said in an interview. “Native Americans have a lot at stake casting their vote for someone who has supported them.”
Iron Eyes is among those personally hoping Heitkamp wins.
He was arrested in connection with the pipeline demonstrations in February 2017 and charged with inciting a riot and criminal trespass. Since then, working with the nonprofit Lakota People’s Law Project, which represented him, he has been drawing attention to the cause of those charged in relation to the pipeline protests at speaking engagements from forums to electronic dance music concerts. He and his lawyers used his defense to spotlight the tactics used by the energy company against those protesting the pipeline, which were highlighted in investigative work by The Intercept.
In a deal to settle the case in August, Iron Eyes, whose lawyers said he was facing up to six years in prison, pleaded guilty to a misdemeanor charge of disorderly conduct that carried no jail time and no risk to his law license. Prosecutors dropped the more serious charges.
The protests weren’t popular in North Dakota. Iron Eyes said he knows his support might not be politically helpful, and he’s not involved at all with the campaign.
In June, the North Dakota Republican Party posted side-by-side images of Iron Eyes and Heitkamp on its Facebook page captioned “Where’s the outrage?”.
He said he didn’t know what to expect from Native American turnout.
But power at the ballot box, he said, hopefully would lead to “the lifting of the ongoing political and economic oppression that is on tribal nations.”
The Center for Public Integrity is a nonprofit investigative news organization based in Washington, D.C. This story is part of the Center for Public Integrity’s “Abandoned in America” series, profiling communities connected by their profound needs and sense of political abandonment at a time when President Donald Trump’s administration has declared the nation’s war on poverty “largely over and a success.”