Members outside Fort Berthold reservation seek voting rights

BISMARCK, N.D. (AP) – Two members of the Three Affiliated Tribes have filed a federal lawsuit to expand voting rights for members who live outside the Fort Berthold Indian Reservation.

The ¯ filed last week seeks to end a requirement that forces members to return to the reservation to vote in tribal elections. It also seeks to restructure the tribal council.

The lead plaintiff, Raymond Cross, lives in Arizona and has limited mobility. He sought an absentee ballot to vote in a 2018 tribal election but the Tribal Business Council Election Board rejected his request “with a curt written explanation that because he resided off Reservation he was ineligible for an absentee ballot,” the lawsuit said. 

Tribal Chairman Mark Fox, one of the defendants, noted in a statement that resident absentee voting is allowed “in very limited circumstances.” Fox and other members of the Tribal Business Council will seek to have the case dismissed, the Bismarck Tribune reported.

The lawsuit claims the residency requirement “unfairly and substantially” burdens the plaintiffs’ “fundamental and undisputed rights to vote, as well as those rights of Cross’ fellow nonresident” voters. The complaint estimates that at least 75% of tribal members live outside Fort Berthold.

“It’s relatively easy to obtain exemptions from having to appear physically at the polling site on the reservation on election day,” Cross told the newspaper. “But those exemptions are available only to resident voters, not nonresidents.”

Fox said the Mandan, Hidatsa and Arikara Nation Courts have exclusive jurisdiction to any challenge of the Nation’s constitution and election laws. He added that the tribal court is reviewing the lawsuit. 

The matter has been in the tribal court system for two years. Cross and his sister Marilyn Hudson, the other plaintiff, appealed a decision from the MHA District Court to the tribal Supreme Court last year after the lower court dismissed their claims. The Supreme Court justices wrote in their ruling that “it is within the inherent sovereignty of their tribe” to define voter rights.

“To this end there is nothing to preclude a tribe from limiting eligible voters by membership status, age and even residency as is reflected in the TAT Constitution,” they wrote.

Cross and Hudson took their case to federal court, arguing that the tribe’s requirements surrounding voting and residency violate the federal Voting Rights Act of 1965, as well as the due process and equal protection clauses of the U.S. Constitution.