Tribes, Lines, and Legal Landmines: Exploring a Potential Recourse for Native Seat Dilution

On November 11, 2021, North Dakota adopted new state legislative boundaries, completing its decennial redistricting cycle. [1] While the map was largely uncontroversial, three districts drew intense scrutiny for their indigenous population compositions. A few months later, a coalition of tribes and Native American residents filed suit in the federal District Court of North Dakota, contending that the new boundaries diluted their collective voting power. In the ensuing case, which became known as Turtle Mountain Band of Chippewa Indians v Howe, the state vehemently rejected these accusations, offering myriad explanations in defense of their new lines. Most prominently, North Dakota argued that the coalition’s desire for another majority-minority seat would exceed the requirements imposed by the Supreme Court’s Thornburg v Gingles decision, which grants racial minorities certain protections in the redistricting process. [2] In November 2023, Chief Judge Peter Welte comprehensively refuted this assertion, holding that the state’s legislative maps discriminated against two tribes. [3] In its opinion, the District Court addressed how North Dakota failed to properly apply the Supreme Court’s precedent, noting how the legislature prevented “Native American voters from having an equal opportunity to elect candidates of their choice.” [4] While many may interpret this decision as a straightforward application of Gingles, the ruling implicitly undermined future attempts to dilute indigenous voting strength. By emphasizing how geography, low turnout rates, and discrimination impact indigenous voters, the court demonstrated how tribal nations are entitled to districts that better accentuate their political concerns.

To fully understand the implications of this recent case, it’s important to contextualize it with the history of indigenous voting rights. Tribal communities have been neglected in the electoral process throughout American history, with countless roadblocks making it impossible to rectify their social inferiority. [5] Before the passage of the Indian Citizenship Act of 1924 (ICA), Native Americans were not considered U.S. citizens and were subject to widespread violence. [6] Even after the ICA was enacted, however, states continued to deny voting rights to indigenous people, utilizing mechanisms like poll taxes, language tests, and literacy exams. [7] It wasn’t until the Voting Rights Act of 1965 (VRA) that the federal government granted these individuals comprehensive suffrage. Despite persistent attempts to circumvent this law through intimidation at the ballot box, Congress continued to strengthen the VRA by adopting a series of amendments to eliminate insidious forms of racial discrimination. Notably, the 1975 revision dramatically enhanced the Act by requiring jurisdictions with significant indigenous populations to print ballots in multiple languages. [8]

In addition to enfranchising Native Americans, the VRA also implicitly provided these voters with a tool to challenge racial gerrymandering. In particular, the Supreme Court has repeatedly held that Section 2 of the Act, which outlawed discriminatory voting procedures, requires forming majority-minority districts (VRA districts) in specific contexts. In Thornburg v Gingles (1986), the Court established the Gingles test as a broad framework for determining when voters are entitled to VRA districts. [9] According to the opinion, three preconditions must be satisfied: 1) the minority group must be sufficiently large and concentrated, 2) the community must vote as a bloc, and 3) the majority racial group must likewise be politically cohesive, but in support of opposing candidates. [10] Although the decision sought to boost minority political power, its mandates for particular population sizes and geographical compactness mainly limited its applicability to African Americans and Hispanics rather than indigenous Americans, who tended to be concentrated in rural areas. Consequently, while numerous rulings over the subsequent decades continued refining the Gingles test, Native Americans struggled to benefit from them. However, the Supreme Court’s ruling in Allen v Milligan (2023) marked a deviation from this trend, indirectly providing tribal communities a pathway to securing greater representation. While the case explicitly dealt with a hypothetical Black VRA district in Alabama, the analysis relied on an objective evaluation of the state’s electoral dynamics. [11] In this manner, the decision emphasized how the Gingles requirements are entirely contextual, thus making them applicable to all racial minorities. Synthesized with Howe, these rulings demonstrate how Native Americans currently have a robust legal foundation to attain more VRA seats.

To begin, Howe illustrated how indigenous communities are inherently likely to satisfy the first Gingles requirement. In particular, the opinion noted how objections to tribes’ geographical continuity are misguided because majority-Native districts can still be reasonably compact. Historically, settlers and federal agencies forcibly relocated Native communities to distant reservations, a fact which some legislators have exploited to suggest violates the first condition of the Gingles test. [12] In its argument, North Dakota alluded to this idea, charging that the proposed remedial maps were significantly less compact than the enacted boundaries. However, the court countered this notion on two fronts. First, Chief Judge Welte invoked Milligan when stating that geographical cohesion does not entail “a ‘beauty contest’ between plaintiffs’ maps and the state’s districts.” [13] Despite its simplicity, this statement illustrated how compactness extends beyond visual appearances and must be assessed from a holistic perspective. Juxtaposed with the reality that reservations are often clustered together, the decision implied that politicians can grant Native Americans a larger voice by uniting neighboring tribal lands in legislative maps.

Moreover, the District Court cited Milligan when explaining how a proposed VRA seat was reasonable because minorities constitute a distinct community of interest. The consideration of factors like tribes’ “representational interests, socioeconomic statuses, and cultural values” underscored how localized political contexts are crucial in constructing new boundaries. [14] By extension, given how indigenous people across the country face similar financial, educational, and healthcare disparities, the ruling reaffirms that Native Americans are a protected class that ought to be protected during the redistricting process. [15] As such, Howe indicated that the Gingles test necessitates the acknowledgment of tribal nations, thus enhancing their collective power.

Furthermore, the court underscored how indigenous communities satisfy the third Gingles prerequisite due to their historically low turnout rates. In his decision, Chief Judge Welte was forced to determine which elections best reflected the state’s racial polarization dynamics. After reviewing the five most recent federal elections, the District Court found that the 2018 midterms, marked by unprecedented Native enthusiasm, were anomalous and deserved less quantitative weight than other results. [16] This conclusion was particularly notable because it clarified that legislators cannot exploit favorable electoral data during the redistricting process; instead, broader trends in voter behavior are more probative in assessing Gingles claims. Given how Native Americans and white individuals have long held sharply divergent political views, one can extrapolate the decision to illustrate how tribal nations face severe voter polarization in racially heterogeneous regions. [17] As such, the opinion showed how indigenous communities are inherently likely to meet the third Gingles precondition in most instances. Alternatively, the ruling implied that majority-minority seats must account for uneven turnout across demographic groups. This analysis was significant because tribal nations have persistently voted at extremely low rates in comparison to white Americans, who are the most civically engaged citizens. [18] By incorporating this fact into his evaluation, Chief Judge Welte indicated that VRA districts are only valid if they are conducive to minority candidate viability. This statement suggested that Native Americans are entitled to districts where their preferred politicians have a reasonable chance of victory, ensuring them a greater collective voice. In this manner, Howe provided a framework for protecting Native Americans from racial discrimination beyond what statistics ostensibly depict.

Similarly, the decision’s analysis of societal factors emphasized how contextual evidence supports indigenous communities’ desires for majority-minority seats. The District Court discussed how legislators should examine the legacy of discrimination and racial representation when crafting VRA seats. On the first point, Chief Judge Welte wrote that tribal nations in North Dakota still “experience the effects of discrimination across a host of socioeconomic measures, which results in inequal access to the political process.” [19] This observation was important because it underscored how redistricting can implicitly perpetuate systems of electoral repression. As such, given how systemic inequities continue to affect indigenous communities across the country, VRA districts can be viewed as a means of remedying both Gingles violations and historical oppression. [20]

The ruling also stated that North Dakota’s legislative maps didn’t comply with Section 2 of the VRA partly because the “obvious disparity as to proportionality is further evidence of vote dilution.” [21] By noting how poorly Native American-backed candidates fared under the enacted boundaries in 2022, Chief Judge Welte implied that electoral success must be considered in determining whether minorities are entitled to greater representation. On a broader scale, this reasoning indicated that indigenous individuals can petition for fairer boundaries if biased maps systematically prevent them from winning elections. In this manner, the decision demonstrated how circumstantial evidence bolsters tribes’ voter dilution claims, simultaneously boosting their chances of attaining majority-minority seats.

Although the impacts of Milligan are yet to be fully understood, opinions like Howe suggest that all racial minorities, including Native Americans, stand much to gain. Specifically, by affirming claims of compactness, turnout disparities, and societal factors, the ruling underscored how tribal communities are inherently likely to satisfy the Gingles test. As such, the District Court provided a mechanism for expanding indigenous political representation across the country. The significance of this decision is even more pronounced when considering its context; the opinion came at a pivotal moment when Native American concerns, which have long been ignored, are finally starting to make their way into the justice system. [22] As advocates look ahead to another grueling redistricting cycle in 2030, they can rest assured that they have a powerful legal tool at their disposal.

 Edited by Imaan Chaudhry

[1] Jason O’Day, “Governor approves ND redistricting map; area lawmaker unhappy,” Dickinson Press, November 11, 2021, https://www.thedickinsonpress.com/news/governor-approves-nd-redistricting-map-area-lawmaker-unhappy.

[2] Larry Liu, “The Minority-Preferred Candidate in Thornberg v. Gingles: An Argument for Color-Blind Voting,” Notre Dame Journal of Law, Ethics & Public Policy 8, no. 2 (February 2014): 640

[3] Turtle Mountain Band of Chippewa Indians v Howe, 2 (D.N.D. 2023)

[4] Turtle Mountain Band of Chippewa Indians v Howe, 38-39 (D.N.D. 2023)

[5] Aslanian, Artour, and Jean Schroedel, “Native American Vote Suppression: The Case of South Dakota,” Race, Gender & Class Journal 22, nos. 1-2 (2015): 309

[6] Matthew McCoy, “Hidden Citizens: The Courts and Native American Voting Rights in the Southwest,” Journal of the Southwest 58, no. 2 (Summer 2016): 295

[7] Debra Krol, “Native People Won the Right to Vote in 1948, but the Road to the Ballot Box Is Still Bumpy,” Pulitzer Center, November 4, 2022, https://pulitzercenter.org/stories/native-people-won-right-vote-1948-road-ballot-box-still-bumpy.

[8] Jeanette Wolfley, “Jim Crow, Indian Style: The Disenfranchisement of Native Americans,” American Indian Law Review 16, no. 1 (1991): 190

[9] Thornburg v Gingles, 478 U.S. 30, 31 (1986)

[10] Mary Kosterlitz, “Thornburg v. Gingles: The Supreme Court's New Test for Analyzing Minority Vote Dilution,” Catholic University Law Review 36, no. 2 (Winter 1987): 553

[11] Allen v Milligan, 599 U.S. 1, 2 (2023) 

[12] Robert Saunooke, “The Battle to Enfranchise Indigenous Voters,” Human Rights Magazine, October 24, 2022, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/economics-of-voting/the-battle-to-enfranchise-indigenous-voters/.

[13] Turtle Mountain Band of Chippewa Indians v Howe, 18 (D.N.D. 2023)

[14] Turtle Mountain Band of Chippewa Indians v Howe, 19 (D.N.D. 2023)

[15] Kathleen Brown-Rice, “Examining the Theory of Historical Trauma Among Native Americans,” The Professional Counselor 3, no. 3 (2013): 117

[16] Turtle Mountain Band of Chippewa Indians v Howe, 33 (D.N.D. 2023)

[17] Jeonghun Min, “Why do American Indians vote Democratic?,” The Social Science Journal 51, no. 2 (2014): 168

[18] Jennifer Robinson, “Empowerment of American Indians and the effect on political participation,” PhD dissertation at the University of Utah (2010): 46.

[19] Turtle Mountain Band of Chippewa Indians v Howe, 36 (D.N.D. 2023)

[20] Findling et al., “Discrimination in the United States: Experiences of Native Americans,” Health Services Research 54, no. S2 (2019): 1432

[21] Turtle Mountain Band of Chippewa Indians v Howe, 38 (D.N.D. 2023)

[22] Emily Zhang, “Native American Representation: What the Future Holds,” Idaho Law Review 56, no. 2 (2021): 323