by Ernest L. Stevens, Jr.
June 2nd, 2024 marked the 100-year anniversary of enactment of the Indian Citizenship Act, which granted all Native Americans citizenship and the right to vote. Enacted four years after the 19th Amendment to the U.S. Constitution was ratified, America’s first inhabitants were the last to be granted voting rights.
The need for the Indian Citizenship Act stemmed, in part, from the U.S. Constitution and its acknowledgement of the fact that Indian tribes are separate distinct sovereign governments, and individual Indians are members of those governments.
Article 1, section 8 of the Constitution sets forth the enumerated powers of the legislative branch of the federal government. Clause 3 of that provision – often referred to as the Commerce Clause – provides that Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Likewise, Article 1, Section 2, clause 1 of the Constitution, provides that “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”
This infamous provision, known as the “three-fifths compromise,” was an agreement between the Northern and the Southern states at the Constitutional Convention. The states agreed that slaves would only be counted as three-fifths of a person for purposes of determining representation in the U.S. House of Representatives.
The provision is less well known for its “excluding Indians not taxed” phrase, which essentially acknowledged that Native Americans were not considered U.S. citizens, and thus had no right to vote in federal or state elections.
Shortly after the United States Civil War, Article 1, Section 2 of the Constitution was modified by the 14th Amendment. Ratified in 1868, this historic amendment extended citizenship and voting rights to formerly enslaved people. However, Section 2 of the 14th Amendment maintained the phrase “excluding Indians not taxed.”
It’s important to note this time in history. The year 1868 marked the beginning of the federal government’s allotment and forced assimilation policy that sought to destroy the governing structure of Indian tribes, strip tribal governments of their lands, and authorized taking Indian children from their homes – placing them in boarding schools where they were forbidden from speaking their language or practicing their religion.
More than a half century later, Congress enacted the Indian Citizenship Act of 1924, also known as the Snyder Act. That law provided “That all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided that the granting of such shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.”
While many view the extension of citizenship and voting rights as a benefit to tribal governments, some tribes view the Citizenship Act as a unilateral act of Congress that was an extension of the government’s attempt to assimilate Indians.
Others view the law as providing Native Americans a vote and a voice in American politics. The right to vote meant the right to have a say in who will sit in Congress. For nearly 150 years, Congress enacted laws that abrogated Indian treaties, implemented the removal policy that led to dozens of Trails of Tears, and enacted the above-mentioned allotment and assimilation policies. All of this and more was done while American Indians had no vote, and no voice in federal or state elections.
The Indian Citizenship Act held potential for positive change. Despite passage of the Citizenship Act, many states continued to deny American Indians voting rights for decades. For example, Native citizens living on Indian lands in the State of New Mexico were not able to vote until 1962. Even today, exercising the right to vote is an ongoing struggle in Native communities throughout the U.S.
In recent decades, the Native vote is playing an outsized role in federal and state elections nationwide. In 2000, the Native vote in the State of Washington is credited for ousting former Senator Slade Gorton, an outspoken anti-sovereignty voice in Congress.
The Native vote will again play a pivotal role in the 2024 presidential election. The Indigenous population in seven of the top 10 closest state electoral races for President in 2016 and 2020 exceeded the candidate’s margin of victory. For example, former President Trump won the State of Arizona’s 11 electoral votes in 2016 with a 91,000-vote margin (1.5%). In 2020, President Biden flipped Arizona, taking those 11 electoral votes by a razor-thin margin of 10,457 votes (0.3% margin).
The population of Native Americans in Arizona is more than 430,000 (6%), far above the margin of victory in the last two presidential elections. Similar circumstances exist in the traditional battleground states of Michigan, Minnesota, and Nevada. The potential Native vote in emerging swing states of Minnesota and North Carolina also exceeds the most recent margins of victory in those states.
The Native vote will also impact the contest for control of the U.S. Senate. The potential Native vote in five of the ten most competitive Senate races far exceeds the recent winning margins in Arizona, Michigan, Montana, Nevada, and Wisconsin.
Elections clearly have consequences. The most consequential outcome of the 2024 election could be the ability of a President to nominate and U.S. Senators to either confirm or reject up to three new Supreme Court justices.
It is difficult to overstate the role of the U.S. Supreme Court in the lives of those living on Indian lands. In 2022, the Court rolled back more than a century of precedent, holding that state governments have criminal jurisdiction on Indian lands in the misguided Castro-Huerta decision.
In 2023, the Court upheld the constitutionality of the Indian Child Welfare Act in the Brackeen case to the great relief of everyone in Indian Country. However, the Court left open the question of whether ICWA violates the Constitution’s equal protection clause. A similar case winding its way up to the Supreme Court, Maverick Gaming, LLC v. United States, involves a commercial cardroom in the State of Washington, which claims that the Indian Gaming Regulatory Act is based on “race and ancestry.” Indian Country is united in denouncing these lawsuits as dangerous and destructive.
These attacks serve to highlight the importance of the upcoming election. The Native American vote is our voice and our power to ensure that policymakers are held accountable. To help energize the Native vote this past fall, the Indian Gaming Association’s “My Vote WILL Count” campaign held stops throughout Indian Country, recruiting young warriors to organize their communities.
Exercising our voting rights not only empowers our people and advances our future, but it also serves to honor the sacrifices of our ancestors who fought to protect tribal sovereignty and our way of life. Your vote will ensure that we send people to Congress who will work with Indian Country to protect tribal sovereignty and put judges on the federal bench who understand federal Indian law. Our power at the polls will determine whose voices will guide Congress for the next two years. Indian Country’s vote will count. We can, and we will make a difference.
Ernest L. Stevens, Jr. is Chairman of the Indian Gaming Association. He can be reached by calling (202) 546-7711 or visit www.indiangaming.org.
