To Make Native Votes Count, Janine Windy Boy Sued the Government

“We had elections stolen from us, absolutely, yes we did,” remembers Crow educator and activist Janine Pease, recounting the barriers Crow and Northern Cheyenne people faced when trying to vote in Big Horn County, Montana, in the 1980s.

Confronted with a variety of vote dilution and voter suppression tactics described by the ACLU as reminiscent of the Jim Crow-era South, Pease—then Janine Windy Boy—and seven other plaintiffs sued Big Horn County in 1983. Three years later, United States District Judge Edward Rafeedie ruled in Windy Boy v. Big Horn County that the county’s election system violated the Voting Rights Act, concluding, “Past and present discrimination against [the Northern Cheyenne and Crow] makes it more difficult for [them] to participate in the political process.”

The election system, which required candidates to attain a majority vote in the entire county as opposed to smaller districts, had resulted in no Native person ever being elected to the Board of Commissioners or the school board, an absurd result in a county where 46 percent of the population was Native. Yet that was just one of a number of structural barriers based on non-Native hostility.

During a 1984 voter registration drive, Pease, then county chair of the Democratic Party, went to the county clerk to obtain voter registration cards. Protesting that Pease “wasted registration cards all the time,” the clerk only allowed her to take ten, which she numbered and made her sign for. In contrast, Clo Small, a white woman married to Northern Cheyenne rancher Mark Small, recounted that when she had visited the clerk, she received at least 50 cards, unnumbered, “without any questions asked.”

Pease recalled that as Crow and Northern Cheyenne community members began to research the election process, they soon discovered other striking inequalities. Despite their large numbers in Big Horn County, Natives accounted for less than 3 percent of all government employees. Likewise, in a 35-year career, one high school teacher, Pease found, had never given a Native student a grade higher than a C. The county coroner, an elected position, consistently ruled Native deaths to be “accidental,” even with evidence of foul play. “It was way worse than I ever imagined,” Pease remembered.

Natives in Big Horn County began registering voters in earnest in the early 1980s, electing Ramona Howe (Crow) to the state legislature in 1982. In prior decades, Native voter registration numbers were very low, reflecting systemic efforts to keep Native people out of state and local politics. For example, there were almost no Native deputy registrars, the county officials responsible for registering voters. The 1980s shift marked a concentrated effort by Native organizers to encourage Native people, who already showed high turnout in tribal elections, to vote in state and local elections. But, despite their success in registering voters, Pease recalled, they quickly realized that the Crow Reservation was carved into multiple legislative districts, making it almost impossible for a Native candidate to win such a seat.

When Pease was elected chair of the local Democratic Party, becoming the first Native person to hold the post, “almost all of the white people in the room, down to the last person, got up and walked out of the meeting,” she recounted in ACLU attorney Laughlin McDonald’s book, American Indians and the Fight for Equal Voting Rights. After increased Native turnout in 1982 helped elect Howe and white officials sympathetic to Native causes, some white Democrats joined with Republicans and formed a group to oppose such candidates.

Pease and other Native organizers pushed for a change in the way elections in the county were conducted. They met with the county commissioners and school board to see if they would adjust the system of elections, which dated back to 1927, to a new one that was district-based. According to McDonald, commissioners countered with the claim that the “system was working,” and questioned whether Crow and Northern Cheyenne communities had enough candidates “educated enough to run a county, or be involved in the school board.” Stymied, Pease and seven others teamed up with the ACLU, which had litigated a string of voting rights cases in the South, and the case began to work its way through the court system.

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The barriers to Native political participation that Windy Boy (and dozens of cases since) addressed are deeply entrenched. Throughout the 20th century and across the United States, non-Natives worked hard to maintain political power by keeping Native people from casting ballots in state and local elections. They claimed that the “unique status” of Native people precluded them from exercising the rights of citizenship.

In the late 19th century, most Americans did not consider Natives to be “civilized” or intelligent enough to become citizens without assimilating first. While many black, Latino and Asian Americans were excluded from the benefits of citizenship, for many decades in the late-19th and early-20th centuries, citizenship was imposed upon Natives as part of a policy of eliminating tribal culture and land rights.

The notorious 1887 Dawes Act provided the mechanism for U.S. citizenship for Native Americans, but also enshrined what amounted to a massive land theft. By the beginning of the 20th century, thousands of Natives had been made citizens, but by the 1930s, two-thirds of all Native lands held in 1887 were lost to white settlers—about 87 million acres in total, an area slightly smaller than the state of Montana itself.

After World War I, Congress passed an act enabling Native veterans of the Army or Navy who had been honorably discharged to choose to become citizens, and the remaining one-third of the Native population (about 125,000 people) in the U.S. unilaterally became American citizens in 1924 when President Calvin Coolidge signed the Indian Citizenship Act (ICA).

The ICA was a contested topic among Native intellectuals, activists and tribal leaders. Some opposed citizenship outright, since Native people were already citizens of their own, sovereign tribal nations. Citizens of the Haudenosaunee confederacy in the northeastern U.S. were among the most outspoken opponents of the ICA. Tuscarora Chief Clinton Rickard wrote in his autobiography, “We did not want or need the white man’s type of citizenship…This was a violation of our sovereignty. Our citizenship was in our own nations.”

Others supported the ICA but maintained the legitimacy of both citizenship and tribal sovereignty. For intellectuals like Zitkala Sa (Yankton Sioux), Carlos Montezuma (Yavapai-Apache) and Laura Cornelius Kellogg (Oneida), citizenship would force Americans to recognize Native presence in the U.S. and compel the Bureau of Indian Affairs to grant Native people more autonomy. In a 1921 essay, “America’s Indian Problem,” Zitkala Sa advocated both for enfranchisement and seeing the “many treaties made in good faith with the Indian by our government” “equitably settled.” Zitkala Sa formed political alliances with the predominantly white General Federation of Women’s Clubs, which had supported the women’s suffrage movement, to push for their support of Native citizenship. After the ICA was passed, she traveled the country to register Native voters.

The ICA instituted “a form of dual citizenship,” in the words of scholar Kevin Bruyneel, but decades after the passage of the ICA, Native peoples’ legal rights as American citizens and members of sovereign nations were misunderstood, even ignored. State and local officials often deferred matters dealing with Native rights, including the right to vote, to the federal government, citing the fact that income earned on the reservations are not taxable. New Mexico’s constitution denied “Indians not taxed” the right to participate in state elections, and in 1928, just four years after the passage of the ICA, two Akimel O’odham men from the Gila River Indian Reservation tried to register to vote in Arizona. The county recorder refused to register them. Paternalistically, the Arizona court agreed that despite their American citizenship, they and other Native Americans were still “wards,” and not qualified to vote in any Arizona election.

Both Arizona and New Mexico’s disenfranchisement of Native people were deemed unconstitutional in 1948 in two court cases brought by World War II veterans, Miguel Trujillo (Isleta Pueblo) and Frank Harrison (Mohave). But the battle to expand Native voting rights was far from over.

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The campaign to register 2,000 Native voters in Big Horn County, and the ensuing political victories, met a fierce white backlash and charges of election fraud. A member of the state commission who investigated these allegations found no fraud but rather that “the most striking feature of Big Horn County is this: there is a very unfortunate racial polarization taking place.”

The post-primary backlash took many forms, writes McDonald. Newfound and intimidating poll watchers showed up at a Crow precinct, and voters were sent away from polling places by white polling judges for speaking the Crow language.

The county clerk moved dozens of Native names to rolls at different precincts without warning, meaning that on election day, registered voters showed up at the polls to find that they needed to drive miles to cast ballots. Elections were often so close that three dozen lost votes could mean a lost election. Native organizers started planning ahead, paying to view the list of registered voters and transporting those voters whose precincts had been transferred. “By 1983, we almost memorized who was in our precinct,” Pease recalled.

The plaintiffs in Windy Boy presented expert testimony from a political scientist who found that based on election data from the 1970s and 1980s, whites overwhelmingly voted for white candidates and Native people for Native candidates. The defendants pushed back that race alone did not account for such polarized voting patterns. But the judge ruled that the case required “a healthy dose of common sense.” Racially polarized voting violated the Voting Rights Act’s Section 2, which prohibits not only those election practices that are intended to be racially discriminatory but also those that have a racially discriminatory impact.

An article published in the New York Times shortly after the Windy Boy decision described white disappointment with the ruling: They complained that “an Indian majority on the three-member board would result in crippling taxes on whites for the benefit of Indians.” For the plaintiffs, though, the victory signaled greater Native participation in county politics. One of the attorneys for Pease and the other plaintiffs told the Billings Gazette that “It will be a good vehicle to reduce racial tensions in Big Horn County.”

Windy Boy did change Big Horn County politics: In the next election, John Doyle Jr. (Crow) became its first Native county commissioner, and in 1984, Wayne Moccasin (Crow) had narrowly won a seat on the school board. Today, Montana has one of the highest rates of Native representation in a state legislature. But, as Pease explains, the real work began after the decision from the Billings District Court was handed down. “People think that the Voting Rights Act protects and corrects [on its own],” she cautions. “It doesn’t. From the local level, you have to make that happen.”

The Windy Boy case didn’t just secure Native people representation in Big Horn County. It also transformed voting into a tactic for protecting Native communities. Popular misconceptions hold that Native voters have no viable stakes in political issues at the state level. Issues like access to law enforcement, trash removal, road maintenance, sewage systems and equal disbursement of welfare grants, however, had been at the forefront of Native women’s organizing efforts for decades. Gaining access to the vote meant that Native people finally had a say outside of tribal government in how badly needed resources were allocated.

Wanda Martinez, a coordinator for a voter and policy advocacy group, told the Tribal College Journal of Higher Education in 1996, “The Windy Boy Case started it all. It really kicked out the whole Indian vote.” It also was the opening salvo in a series of lawsuits aimed at expanding Native access to the vote. But Native voters still face persistent roadblocks when they try to vote in U.S. elections. Physical and geographical barriers make reaching polling places difficult and voting by mail nearly impossible in some cases. Lack of reliable broadband internet and cellular service as well as restrictive voter identification policies also negatively impact voter engagement.

Pease stresses that Native voters “must be vigilant to participate in the voting process.” “Voting rights impacts every aspect of the lives of Native Americans,” she says. “These systems won’t be responsive unless we can fully participate in them.”

Mary Klann | | READ MORE

Mary Klann is a lecturer in U.S. and Native American History at University of California, San Diego and San Diego Miramar College. She is currently working on her first book, Wardship and the Welfare State: Native Americans and the Formation of First-Class Citizenship in Mid-Twentieth-Century America, under contract with University of Nebraska Press.