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Montana Supreme Court Strikes Down 4 'Unconstitutional' Voting Laws Passed by GOP
The laws disproportionately impacted the ability of Native people to participate in voting, the court noted.
Mar 28, 2024
Native rights groups were among those applauding a decision by the Montana Supreme Court late Wednesday as four voting restrictions, passed by the Republican-controlled state legislature in the wake of former President Donald Trump's 2020 election loss, were struck down as "unconstitutional."
The sweeping 2021 laws had ended same-day voter registration, eliminated the use of student ID cards as a form of identification for voters, banned the distribution of absentee ballots to teenagers who would turn 18 by Election Day, and prohibited third parties from collecting ballots and returning them on behalf of voters.
Indigenous rights groups and tribes including Native Voice, Montana Native Vote, the Blackfeet Nation, the Confederated Salish and Kootenai Tribes of the Flathead Reservation, the Fort Belknap Indian Community, and the Northern Cheyenne Tribe filed a lawsuit in 2021 to challenge H.B. 176 and H.B. 530, the two laws pertaining to same-day registration and ballot collection.
Chief Justice Mike McGrath noted that Native people were disproportionately affected by the two laws, writing that it is "much more difficult on average for people living on reservations to either get to a polling place on or before Election Day, or to mail an absentee ballot prior to election day."
The summary of the majority opinion said the laws "violate the fundamental right to vote provided to all citizens by the Montana Constitution."
The court upheld a district court ruling from 2022.
"Today's Montana Supreme Court decision is a great victory for our clients and all Native Americans in Montana, who have asked for nothing more than the ability to exercise their fundamental right to vote," said Jonathan Topaz, staff attorney at the ACLU's Voting Rights Project. "Once again, courts have struck down the Montana Legislature's attempts to unconstitutionally burden the constitutional rights of Native Americans across the state. We will continue to fight for Native American voters in Montana and across the country to preserve their fundamental, constitutional right to vote."
Jacqueline De León, staff attorney for the Native American Rights Fund, called the 4-3 ruling "a resounding win for tribes in Montana."
"Despite repeated attacks on their voting rights, tribes and Native voters in Montana stood strong, and today the Montana Supreme Court affirmed that the state's legislative actions were unconstitutional," said De León. "Native voices deserve to be heard and this decision helps ensure that happens."
Josh Douglas, a law professor at University of Kentucky, wrote at Election Law Blog that the state Supreme Court "put real teeth into [the] state constitutional protection for voters," recognizing that the Montana Constitution goes further than federal law in protecting voting rights.
As the state constitution reads, "All elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage."
"The court refused to follow federal precedent, noting that '[t]his court can diverge from the minimal protections offered by the United States Constitution when the Montana Constitution clearly affords greater protection—or even where the provision is nearly identical,'" wrote Douglas. "State courts have various tools within state constitutions to robustly protect voters. The Montana Supreme Court's decision offers a solid roadmap for how to use state constitutional language on the right to vote. Other state supreme courts should follow the Montana Supreme Court's lead."
The ruling comes as Sen. Jon Tester (D-Mont.) faces a competitive race for reelection.
Ronnie Jo Horse, executive director of Western Native Voice, said the ruling "reinforces the principle of equitable access to voting services and the protection of the rights for all voters."
"We are very pleased with today's landmark ruling," said Horse. "It stands as a testament to justice prevailing in defense of the rights of Montanans, especially those of Native American communities."
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Healing From the Horrors of Wounded Knee 133 Years Later
But how do we heal? That’s a question still worth asking.
Jan 21, 2024
On December 29, the Lakota held a ceremony at the Wounded Knee gravesite and read the names of those who were killed, and identified—aloud—women, children and entire families wiped out by the howitzers. There were many who were not named but remembered in the wind and in the moment.
It was somber. And, for the second year, clothing, moccasins and pipes that belonged to the murdered were there at Wounded Knee, returned from a museum in the east, where a ghoulish collection had rested for over a century. On that cold December morning, we prayed, listening to songs, as we looked upon the dresses, shirts of the Ghost Dancers and baby moccasins, all stripped from those slain at Wounded Knee. Now, all sat in open boxes covering the gravesite where their people had been buried. We mourned together.
It was l890 and the great leader Sitting Bull (Tȟatȟáŋka Íyotake) was incarcerated at Fort Yates with his people. More than a decade had passed since the U.S. government illegally seized the Black Hills, forcing the people off sacred land. The buffalo had been decimated. Incarcerated at prisoner-of-war camps, the Lakota’s rations had been cut in half. The people were starving.
On December 15, Maj. James McLaughlin ordered the assassination of Sitting Bull by the Indian Police. Sitting Bull’s ally, the Minneconjou Lakota leader Spotted Elk (dubbed “Big Foot” by the cavalry for the size of his shoes), fled south to the Pine Ridge Agency along with about 350 Lakota, mostly women and children.
They traveled under the cover of night, in the depths of winter. They rode over 200 hundred miles through canyons, Badlands and brutal conditions. Chased by Col. Forsyth and the U.S. Army’s 7th Cavalry, they arrived at the village of Wounded Knee, where they sought safety and a chance to live. That chance was not given.
The next morning, Chief Spotted Elk (Uŋpȟáŋ Glešká) and his people, camped just north of Wounded Knee, were surrounded by the 7th Cavalry. Spotted Elk was among the first to fall. Thirty minutes later as many as 300 Lakota lay dead—adults, children and infants.
Forsyth commended his soldiers for their “gallant conduct… in an engagement with a band of Indians in desperate condition and crazed by religion.” The Army awarded 23 Medals of Honor to soldiers who participated in the massacre. U.S. Cpl. Paul Weinert was cited for “firing his howitzer at several Indians in the ravine.”
There’s no way to whitewash this story, although many have tried. This is simply history, and, despite decades of erasure, the story is here to stay. The people remember; they work to heal.
How do you heal? That’s a question still worth asking 133 years later. First, we must acknowledge what happened. Starting there, we grieve and begin to heal spiritually.
In the early 1980s, Alex White Plume’s uncle told him that because the Army had not allowed survivors and family members to perform grieving ceremonies at Wounded Knee, the spirits of the victims were unable to leave the “Land of the Breathing.” In 1986, White Plume, his brother Percy and 17 other Lakota, calling themselves the Si Tanka Wokiksuye Okolakiciye—the “Big Foot Remembrance Group”—embarked on the first annual Big Foot Memorial Ride from the Sitting Bull homestead in Standing Rock to Pine Ridge.
It was an emotional experience, a time to remember the past and reflect on the future. “As men, we cried,” said White Plume. “We used to try to be like the white man—don’t show any pain and just be tough. But after you go through that ride, it’s okay to cry. It heals your wounds.”
The White Plume family has continued this ride for almost 40 years. Each year new young riders come. Stories and prayers recited; men and women suffer in honor of their ancestors. We all come to heal.
During the ride this year, I stood next to Andrea Eastman, a Dakota woman friend from Sisseton reservation, as she looked over the medical notes of her ancestor, Dr. Charles Eastman. Eastman was among the first Native Americans to be certified as a European-style doctor. After graduating from the University of Boston medical school in 1890, he became a physician at Pine Ridge. Eastman saved all the survivors from Wounded Knee that he could. Only seven died in his care. Sickened by the carnage, he was forced out of his position because his medical notes countered Forsyth’s narrative.
Coming Home
At some point, collecting the heads, body parts and sacred items of Native people became a national pastime. Museums in the United States (and Europe) filled themselves with such curiosities; private collectors did the same. One of the largest collections of goods and clothing associated with persons killed at Wounded Knee came to be housed in the Woods Memorial Library Museum (now called the Founders Museum) in Barre, Massachusetts, a small town in western Massachusetts. Prior to their burial, the bodies had been stripped, and their items were donated to the town’s museum by Frank Root, a collector of such grisly remains.
In January 1993, more than a century after the day Root brought the collection to Barre, Nellie Two Bulls, Alex White Plume and Edgar Fire Thunder traveled from Pine Ridge to see the belongings. White Plume described his visit as “one of my saddest expeditions I had ever had.” He said, “We didn’t know what to expect but it was really sad. The reason was all the children’s clothing and the cegpognaka, the amulets for the umbilical cords. Everything had bullet holes in it, blood and Big Foot’s hair.” “The spirits still linger in the museum, I hear their voices and cries,” Nellie Two Bulls said. These Lakota wanted to bring their ancestors’ belongings home.
“These were trophies of war,” says Wendell W. Yellow Bull. His great-grandfather survived the massacre. It took 20 years for the museum to consider returning the clothes, the dolls and the hair.
Museums want to keep their hoards of looted goods, until forced to give them up, either by law or because they recognized it was the right thing to do. Shortly after White Plume’s visit to Barre, I spoke with Audrey Stevens, the Barre Museum curator, who gave me the whitewashed narrative of how the collection came to be.
Stevens told me that Root purchased the collection from its finders, two civilians in charge of putting the dead at Wounded Knee in a mass grave. “They had these wagons and mules which the bodies were on” says Stevens. “One of the mules stepped in a hole. They looked in and found all of these clothes. Big Foot’s Band had buried them there on the way to Wounded Knee.”
For a century, the Barre museum told people this story, that the Lakota had taken off their clothes before they went to Wounded Knee. The suggestion is absurd: What sort of people take off their clothes in the middle of winter?
Upon finding their ancestors’ clothing, considered cultural patrimony, the Lakota sought to bring them home. In 1990, Congress passed the Native American Graves Protection and Repatriation Act to address the widescale plunder of Native America by museums—the bodies, heads and other artifacts collected as booty of war by scientists and the military.
At the time, the Barre Museum said it was exempt from the law, because their collection received no federal funding. The Lakota, however, had allies. One was Mia Feroleto, editor and publisher of New Observations, who helped lead the movement to repatriate the museum’s more than 150 pieces of stolen artifacts. “You can be an inspiration to others or you can be the next generation of perpetrators,” Feroleto recalled telling the museum, Feroleto told the New York Times.Elizabeth Almen Martin, a museum board member, said it became clear that the collection held more significance to the Lakota people than it did to Barre residents. “We decided that anything they wanted to have, they can have,” Martin said.
And so it was that in 2022, the shirts, bullet hole-ridden children’s dresses and baby moccasins returned to Wounded Knee.
The complexity of historic trauma is compounded in the healing process. Native people are asked to bury their ancestors again, and again.
As I stood looking over the grave site with the baby moccasins, I cried. We all did. But in our grieving, something else begins. A new chapter, a time to heal from the brutality of history. The time for massacres is long over. The time for healing is now. That’s true, whether you live in North America, South America or Palestine.
As I witnessed those horse riders, I saw the coming of a new generation. They are the ones already here. It is time to wipe away the tears.
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Sioux Tribes Want US to Come Clean on Treaty Deceit
"For centuries, the U.S. government has broken every promise it's made to Native tribes," says Standing Rock Sioux Chair Janet Alkire. "It's time for that to stop."
Nov 22, 2023
Leaders of the Standing Rock and Oglala Sioux said Wednesday that the two Native American tribes are joining forces in an effort to pressure the Biden administration into a reckoning over a dubious 19th-century treaty that—like just about every other one signed between the U.S. and Indigenous peoples—was broken by Washington.
The two tribes are seeking nation-to-nation consultations between U.S. Interior Secretary Deb Haaland and Assistant Indian Affairs Secretary Bryan Newland—both Native Americans—and the remaining signatory tribes to the Fort Laramie Treaty.
"This is about correcting an injustice," Standing Rock Chair Janet Alkire said. "For centuries, the U.S. government has broken every promise it's made to Native tribes. It's time for that to stop."
"Furthermore," she added, "we're calling on the Biden-Harris administration to take active steps to correct the record."
Treaty rights remain a critical point of contention for the Sioux, who in recent years have fought against violations of their land, water, and sovereignty, including the Dakota Access and Keystone XL pipelines—the latter of which was canceled by President Joe Biden.
"We'd like the current government to take an honest look at what happened."
In the 1860s, fierce Indigenous resistance to Euro-American encroachment on the Great Plains and an Army already weakened by the Civil War resulted in a series of U.S. defeats, including a December 1866 ambush led by Lakota, Cheyenne, and Arapaho warriors that killed all 81 soldiers under the command of Capt. William Fetterman during the Powder River War. It was the worst defeat of U.S. forces on the Great Plains until Little Bighorn a decade later.
In 1868, the U.S. signed the Fort Laramie Treaty with the Arapaho and the Dakota, Lakota, and Nakota Sioux. The treaty established the Great Sioux Reservation and designated the Black Hills as "unceded Indian territory" to be "set apart for the absolute and undisturbed use and occupation" of Indigenous peoples.
However, the tribes claim U.S. officials subsequently—and surreptitiously—added language to the treaty stating that the Indians "relinquish all claims or rights" to lands outside the designated reservation. The U.S. then blatantly abrogated the treaty following the discovery of gold in the Black Hills of South Dakota and, when Indians fought back, unleashed a fresh wave of genocidal violence against them.
"U.S. treaty negotiators snuck the relinquishment language into Article II of the treaty after it was signed by the Sioux chiefs to end the Powder River War," said Oglala Sioux Tribe President Frank Star Comes Out. "We'd like the current government to take an honest look at what happened."
The Indian Claims Commission, a judicial relations arbiter between the U.S. government and Indigenous tribes, concluded in 1976 that the treaty "effectuated a vast cession of land contrary to the understanding and intent of the Sioux."
In 1980, the U.S. Supreme Court ruled that the United States had illegally taken the Black Hills and awarded over $100 million in reparations to the Sioux Nation, which refused the money—now worth over $1 billion—on the grounds that the tribe never wanted to part with its lands in the first place.
"The Black Hills are not for sale," Alkire said Wednesday, "and they never were."
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