Protecting the Democratic Process in Indian Country Through Election Monitoring: A Solution to Tribal Election Disputes

American Indian Law Review, Dec 2012

By Derek H. Ross, Published on 01/01/12

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Protecting the Democratic Process in Indian Country Through Election Monitoring: A Solution to Tribal Election Disputes

Protecting the Democratic Process in Indian Countr y Through Election Monitoring : A Solution to Tribal Election Disputes Derek H. Ross 0 0 Thi s Comme nt is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information , please contact , USA Follow this and additional works at: https://digitalcommon s.law.ou.edu/ailr Part of the Election Law Common s, and theIndian and Aboriginal Law Common s Recomme nded Citation Derek H. Ross, Protecting the Democratic Process in Indian Country Through Election Monitoring : A Solution to Tribal Election Disputes, 36 Am. Indian L. Rev. 423 (2012), https://digitalcommon s.law.ou.edu/ailr/vol36/iss2/5 - PROTECTING THE DEMOCRATIC PROCESS IN INDIAN COUNTRY THROUGH ELECTION MONITORING: A SOLUTION TO TRIBAL ELECTION DISPUTES L Introduction Elections in America are prone to controversy. Each election cycle, it is common to see disputes litigated for weeks after the initial votes have been counted These controversies occur in all levels of elections, including those for state and local governments.2 The media report extensively on these disputes. There is also a large amount of academic literature discussing the causes of and proposed solutions to these election problems, particularly since Bush v. Gore3. Because of the heightened levels of media and academic attention, many states adopted procedures aimed at preventing disruptions to the election process.4 At the federal level, Congress passed the Help America Vote Act,5 "which encourages states to update their voting systems, standardize their voting registration requirements, and otherwise improve their election processes."6 While no system can ever be perfect, governments are at least attempting to find solutions for many of the most frequent problems. American Indian tribal elections experience similar controversies. Each year, dozens of tribal election disputes are litigated in both tribal and federal courts. Some of this litigation lasts many years.' Unlike national and state elections, very little scholarship has been dedicated to finding solutions to tribal election issues. Several factors likely contribute to this lack of scholarship, including the relatively low number of participants in these elections, scant media coverage outside of Indian news publications, and barriers to obtaining election information. Nevertheless, these elections, and the cases stemming from them, deserve both academic and public attention because their outcomes determine who will govern tribe members throughout the United States. Furthermore, the allocation and control of millions of dollars of federal and tribal funds can depend on the election disputes' outcomes. Problem-solvers should investigate procedural solutions to tribal election disputes because election controversies lead to distrust and allegations of illegitimacy from inside and outside of the tribes. Legitimate governments "encourage[] citizens to feel secure in investing in the future of the community. At the same time .. . [they] inspire confidence in outsiders who interact with tribes through social, commercial, and legal dealings." When governments are put in place following litigation, both tribal members and outsiders doubt the government's legitimacy.9 Despite the importance of preventing these controversies, present remedies to tribal election disputes are insufficient. As one court lamented: The Court would like to believe that its decision will resolve, or at least be a positive step toward resolving the long-existing turmoil and contention that exists between the parties .... This, the Court fears, will not be the result. Rather, the Court is confident that, no matter what it decides, or for that matter what the Circuit Court may ultimately decide since it is inevitable that this case will be appealed, that internal rifts within [the tribe] and friction between the [tribe] and the [Department of the Interior] will continue. Nonetheless, despite this pessimism, the Court must try to fashion a remedy that addresses the dispute before it .... o This comment considers election procedures, both in the United States and abroad, and attempts to find solutions to election controversies that can be applied to tribal election systems. First, it details the history of tribal elections and the roles that tribal courts, federal courts, and the Department of the Interior (DOI) play in resolving election disputes. The discussion will also include what remedies, if any, are available to the tribes to resolve these disputes. 8. Angela R. Riley, Good (Native) Governance, 107 COLUM. L. REv. 1049, 1064 (2007). 9. Id. 10. Norton, 223 F. Supp. 2d at 147. Next, this comment examines the remedies suggested for state and local governments to mitigate the increased attention resul (...truncated)


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Derek H. Ross. Protecting the Democratic Process in Indian Country Through Election Monitoring: A Solution to Tribal Election Disputes, American Indian Law Review, 2012, pp. 423, Volume 36, Issue 2,