Native Tribes Are Suing South Dakota Over Failures to Register Voters
The Oglala and Rosebud Nations are Among Plaintiffs in a Suit Claiming the State of South Dakota Routinely Violates the National Voter Registration Act
July 9, 2021
The National Voter Registration Act, sometimes called Motor-Voter, is a federal law requiring that states help their citizens register to vote through the Department of Motor Vehicles and other state-run public assistance agencies. Today, several new plaintiffs are joining two Native American tribes in suing South Dakota, claiming that routine violations of the law in the state have kept Native people from exercising their franchise — just one example of a larger, national pattern of voter discrimination.
The Oglala Sioux Tribe and the Rosebud Sioux Tribe are being joined as plaintiffs by the Lakota People’s Law Project, Rosebud Sioux tribal member Kimberly Dillon, and Standing Rock Sioux tribal member Hoksila White Mountain, according to an amended filing submitted to the U.S. District Court today by legal firms the Native American Rights Fund (NARF) and Demos. Today’s filing updates a lawsuit initiated in September, 2020.
"With this suit, Native American voters seek to ensure that the American freedom to vote is not restricted by negligent actions by the state of South Dakota," said Oglala Sioux Tribe President Kevin Killer.
The plaintiffs allege that many South Dakota voters — and disproportionately the nine percent of the population who are Native — have faced impossible hurdles when attempting to register to vote through the state’s DMV or the Department of Social Services (DSS). While many eligible voters never had a chance to register to vote at state agencies, many who did complete registrations at state agencies could not vote because the state agencies never sent their applications to local elections officials.
"I was denied the opportunity to cast a vote in the 2020 presidential election because the state didn’t process my voter registration,” said Rapid City resident Dillon. “How many other people faced this violation of our basic freedom to vote? We cannot allow voter suppression to continue in South Dakota or anywhere in Native America.”
The lawsuit followed an investigation into South Dakota’s Motor-Voter law compliance in the fall of 2019. The investigation revealed several ways the state does not meet federal law obligations.
“We see routine violations of federal law,” said Chase Iron Eyes, co-director and lead counsel for the Lakota People’s Law Project. “In 2018 and 2020, we worked hard with tribal governments and members to ensure that the voices of Native people were heard at the ballot box. Unfortunately, in many cases, systemic discrimination prevented that. That’s why we’re joining this suit. We’re battling a long history of racism and current nationwide efforts to install new Jim Crow-style laws.”
As of May 14, the Brennan Center for Justice had tracked the enactment of at least 22 bills with restrictive provisions in 14 states, a dramatic increase from prior years. The suit’s plaintiffs and attorneys said that’s a troubling nationwide trend they’d like to see reversed. But in South Dakota, the main problem isn’t the creation of newly restrictive laws, it’s the failure to abide by voter protections already on the books.
“By failing to provide voter registration as required in the National Voter Registration Act (NVRA), the state of South Dakota actively limits the number of citizens who can participate in U.S. elections,” said NARF Staff Attorney Samantha Kelty.
South Dakota has a long and troubled history of disenfranchising Native American voters. In violation of the Indian Citizenship Act of 1924, South Dakota prevented Native people from voting until the 1940s. Todd, Shannon and Washabaugh counties refused to follow laws that protected the rights of Native Americans to vote until 1974. In 1984, the county auditor in Fall River, which includes part of the Pine Ridge Reservation, refused to accept voter registrations from Native American citizens.
In one instance, a Native voter named Tyler Eagle Bull walked 30 miles in 12-degree weather to submit a change of address request for his Supplemental Nutrition Assistance Program benefits and wasn’t initially offered a voter registration application. A DSS staff person then threw his completed and acceptable voter registration form in the trash.
“Native voters in South Dakota have found it harder and harder to perform the simple act of registering to vote. As the number of registered voters plummets, the state has done nothing to fix this systemic problem,” said Rosebud Sioux Tribe President Rodney M. Bordeaux.
According to the filing, between the 2004 and 2016 elections, South Dakota saw an 84 percent decrease in the number of voter registration applications from public assistance agencies, despite an 80 percent increase in people receiving benefits from those agencies. In 2004, up to 13 percent of those receiving food assistance benefits also received voter registration assistance. By 2016, that number had fallen to just over 1 percent.
South Dakota’s full compliance with the Motor Voter Act would give additional voter registration opportunities to Native American voters, helping them overcome barriers such as the lack of registration sites in their communities. For example, though about 90 percent of the population of Buffalo County lives on the Crow Creek Reservation, to register to vote or run for office, reservation residents must drive as far as approximately 90 miles round trip to Gann Valley — populated only by about a dozen residents, all non-Native.
“We have long had the sense that South Dakota lacks the desire and motivation to increase our access to the polls,” said President Bordeaux. “If we successfully register to vote and the state processes our registration, our reservation and some of our communities still lack polling places. The state is aware that many of our people lack the transportation and means to travel to faraway polls, yet they do nothing. The state’s inactions to address registration and polling barriers minimize the impact our votes could have, and we cannot let them get away with it.”
Onerous photo ID requirements also disproportionately burden Native Americans. Natives living on the Rosebud Sioux Reservation in South Dakota have to drive an average of nearly 45 miles to obtain a state identification card, compared to about 17 miles for non-Natives.
“The first step in ensuring election integrity and protecting voting rights is to provide equal access to voter registration services,” said NARF Staff Attorney Jacqueline De León. “South Dakota tribes have direct evidence that the state is not providing the registration opportunities it is required to provide under the law. This suit will make sure that they do so.”
South Dakota counties have even chosen to forgo federal funding rather than service Native American voters. Jackson County refused to use federal Help America Vote Act funding to create a satellite polling office in Wanblee, until forced to do so by a federal lawsuit.
“As Black, brown, and Native communities across the country face a racist push to undermine the basic freedom to vote, South Dakota must live up to its obligations under the National Voter Registration Act — a critical federal voting rights protection that has helped millions of Americans get on the voting rolls over the past 30 years,” said Adam Lioz, Senior Counsel for Demos.
The Lakota People's Law Project operates under the 501(c)(3) Romero Institute, a nonprofit law and policy center.