by Daniel McCool, Susan M. Olson, and Jennifer L. Robinson. New York and Cambridge: Cambridge University Press, 2007. 232pp. Hardback. $80.00/£40.00. ISBN: 9780521839839. Paperback $24.99/£16.99. ISBN: 9780521548717. eBook format. $20.00. ISBN: 9780511276125.
Reviewed by Scott E. Graves, Department of Political Science, Georgia State University. Email: polseg [at] langate.gsu.edu.
The authors of NATIVE VOTE have produced a well-researched, compelling, and insightful book on the voting rights of American Indians, filling a major gap in judicial politics scholarship. Although there have been several treatments of the relationships between American Indians and legal institutions in recent years, as well as several excellent books cataloging the successes and frustrations of the Voting Rights Act (VRA), Daniel McCool, Susan Olson, and Jennifer Robinson combine treatments of the often-peculiar legal circumstances of Native Americans with changes in the conceptualization and recognition of voting rights throughout United States history. Certainly, the book will be a welcome reprieve to scholars interested in voting rights who are tired of analyses of BUSH v. GORE.
Although those scholars will want to add NATIVE VOTE to their shelves, many of the subjects dealt with in the text are presented in a way that will whet their appetites, rather than treated exhaustively. The authors are political scientists, and while they do not shy away from substantive interpretation of voting rights case law, extensive doctrinal analysis is not their primary fare. Instead, they offer thorough characterizations of voting rights litigation on behalf of American Indians, several in-depth studies of cases based on the VRA, and some consideration of the impact that expansion of American Indian electoral participation has had and will have.
The book uses multiple methods, referring extensively to court documents and litigants’ briefs in order to present arguments made and considered as well as those reflected in court opinions and presenting the results of some original elite interviews in the concluding chapters. In several instances, however, the reader will likely wish that the authors had gone into more depth or want to follow up on the authors’ descriptive treatments. Still, the main text covers American Indian voting rights in considerable depth over a substantial time period and from several angles in less than 200 pages of engaging and fluid prose appropriate for an advanced undergraduate course on voting rights.
Most of NATIVE VOTE is devoted to analysis of how the VRA has been applied to American Indian voting rights, but the first chapter provides some background on the difficult struggle to extend the right to vote to Native Americans. Chapter Two presents the legislative development of the VRA and its amendments as the law [*761] is repeatedly adjusted to deal with efforts to restrict voting rights. The chapter also briefly introduces the primary actors in Native American voting rights litigation. The third chapter begins the exploration of VRA litigation with a discussion of the landscape of cases brought under the Act since 1965. Each of the next three chapters focuses on a single case, all based at least in part on Section 2 of the VRA. In Chapter Seven, the authors present their analysis of how this litigation has affected the conditions of Native Americans, relying on documentary and demographic evidence as well as interview data, while the last chapter offers some conclusions about where we are and where we are going in regard to American Indian voting rights.
Chapter One takes on the prodigious task of laying out the background for the rest of the book. Most of the activism undertaken under the VRA and detailed in the subsequent chapters addresses various mechanisms abridging the votes of American Indians, but the first chapter covers the lengthy struggle for recognition of a right to vote by Indians in the first place. Extension of voting rights to American Indians in general came only after their recognition as citizens by a 1924 Act of Congress, and this chapter endeavors to summarize the developments leading to the VRA in just 20 pages. Much of the conflict over American Indian voting rights is attributed to the confusing and contradictory positions articulated in the “Marshall trilogy” and other statements that seemed to recognize Indian communities as sovereigns, but dependents at the same time.
The authors describe various ways that states denied voting rights to Native Americans, including state constitutional provisions, denial of residency status, taxation requirements, and guardianship clauses, but fail to put them within the context of voting rights development over time. Some of these techniques of limiting the franchise were broadly consistent with the general philosophical and legal developments during the 19th Century, throughout which voting was seen as a privilege extended only to those thought capable and deserving of the vote. Property requirements, which gave way to taxation restrictions, were thought to preserve the connection between voting and the independence necessary to exercise the franchise, as well as ensuring that those with sufficient stake in governance could do so (Keysser 2000). The “dependent” status of American Indians made it easy to justify denying them voting rights. Perhaps more interesting than this, however, is the translation of hostile attitudes toward Native Americans in the 19th Century into efforts to exclude them from other developments that expanded the franchise. For instance, several states in the West and Midwest allowed resident aliens to vote in the mid-1800s while denying the right to American Indians.
The second chapter is devoted to the VRA, its amendments, and changing judicial interpretation of the Act. Many of the developments, legislative and judicial, in the VRA described by this chapter do not directly involve Native Americans, but set the reach and scope of the Act and determine how it will be applied. In addition to the discussion of [*762] election mechanisms and techniques that infringe upon and dilute the rights of minorities, the authors also discuss the minority language provision of the Act in section 203. The chapter concludes with a discussion of the primary litigants involved in VRA cases regarding Native voting rights. Along with the Justice Department, American Civil Liberties Union, and American Indian groups, they also briefly discuss the Mountain States Legal Foundation, a group that has recently entered the field on the side of states defending state voting system choices.
In Chapter Three, the authors attempt to describe in full the litigation efforts undertaken on behalf of Native American voting rights through the VRA. They identify 74 cases brought or authorized, and describe them in a 20 page table as well as treating them in categories in the text. Based on the evidence presented therein, American Indians have made extensive and largely successful use of the VRA to protect their voting rights and the efficacy of their participation. However, there is little or no discussion of restrictions of voting rights and efficacy unaddressed by litigation. Such an investigation would require going beyond the signals of voting problems sent by lawsuit, but would help flesh out how adequate the litigation solution is to these problems.
Chapters Four, Five, and Six provide in-depth treatment of voting rights cases in Utah, Montana, and South Dakota. The Utah disputes, filed by the Justice Department against San Juan County, involved the bilingual voting provision of Section 203 and a vote dilution charge under Section 2. The Montana case also began with the Justice Department, while the South Dakota litigation was sponsored by the ACLU’s Voting Rights Project. All three case studies look at the use of “at-large” voting districts to dilute Native American votes, which detracts somewhat from the breadth of their study, but one of the authors (McCool) appeared as an expert witness for the plaintiffs in the latter two cases, which undoubtedly contributed to the thoroughness of their analysis.
The case studies are duplicative in terms of the law applied and the conflicts over application of the at-large elections standards derived from THORNBURG v GINGLES (which are explained in considerable detail), but the descriptions of local conditions in each case are rich and varied. Moreover, the narratives of the cases are fleshed out with references and excerpts from litigant and amicus briefs, attorney general reports, and other documents beyond the findings and conclusions of judges in the cases. All these resources are listed helpfully in the reference sections. As befitting a work produced by political scientists, the value of these studies lies more in their empirical foundations than in the legal analysis provided.
The last two chapters attempt to assess the impact of voting rights litigation of the kind studied in the previous sections on American Indian candidates, office-holders, and communities. Chapter Seven compares the effects of multi-member districts of the kind challenged in the previous cases with single-member and cumulative voting districts and finds that Native American [*763] candidates fare better in the latter two than the former. This chapter also includes the results of phone interviews with fifty Indian and non-Indian office-holders in jurisdictions subject to lawsuit-based dismantling of multi-member districts. Not surprisingly, they find considerable evidence that having American Indian office-holders has some effects on the political success and provision of services to Indians, although not uniformly. An interesting comparison could have been made by expanding this study to include other jurisdictions abandoning multi-member districts without a lawsuit.
The concluding chapter considers the future of American Indian electoral participation in terms of mobilization and partisan politics and looks at other forms of participation, particularly contributions made possible through casino money. The authors raise the issue that increasing the efficacy of Native Americans as a voting population and a lobbying resource increases competition for their votes and other sources of influence, possibly without American Indians’ best interests in mind, citing Jack Abranoff and Michael Scanlon as examples. They do not expressly consider the possibility that gaming wealth and other interests could lead to separations between the interests of some Native American groups or representatives and their communities. The chapter closes with some discussion of the future of the VRA, including an up-to-date discussion of the struggle for renewal in recent years and an argument for the continued relevance of and need for the language provisions and other parts of the law that have been valuable to American Indian rights. They do not consider the strong probability that developments on the Supreme Court within the last ten to fifteen years could lead to provisions of the newly reauthorized Act being struck down as unconstitutional.
As indicated above, NATIVE VOTE is a rich, engaging text appropriate for an upper division undergraduate course in voting rights, supplemented appropriately for subjects that it does not cover and context that is often left to the background. For the scholar interested in voting rights and voting rights litigation related to Native Americans, it is an invaluable text and an excellent starting place for more in-depth research due to the wealth of resources identified and cited in the materials following the main text.
Keyssar, Alexander. 2000. THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES New York, NY: Basic Books.
BUSH v. GORE, 531 U.S. 98 (2000).
THORNBURG v GINGLES, 478 US 30 (1986).
© Copyright 2007 by the author, Scott E. Graves.