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
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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
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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)