“A Law Without a Way to Enforce It”

The water system that provides for the entire Spirit Lake Reservation in North Dakota has been contaminated with dangerous levels of manganese that have made the water undrinkable since May. 

For Lonna Jackson-Street, chair of the Spirit Lake Tribal Council, which is now scrambling to provide bottled water to residents and install a filtration system, the crisis underscores the need for Native voices in government. The federal government fails to properly maintain infrastructure it’s supposed to be managing, and state leaders don’t dedicate enough resources to reservations they see as outside their jurisdiction. “Native representation is so important,” she said, “because they understand the gaps in these services and how they are administered to our tribal nations.”

A member of Spirit Lake Nation was elected to North Dakota’s legislature for the first time last fall thanks to a redistricting lawsuit filed by Jackson-Street’s tribe, alongside the Turtle Mountain Band of Chippewa. The suit claimed that the districts drawn by North Dakota in 2021 violated the Voting Rights Act, and the tribes’ initial success in court triggered a new map and increased representation in 2024.

But last month, a federal appeals court tossed out their victory and declared that only the federal government can sue over violations of the Voting Rights Act, a devastating blow to the ability of these tribes—and others in the region—to seek legal recourse. 

The decision was a major win for the conservative lawyers who’ve been trying to gut the VRA, and it came just as the Trump administration is signaling that it has little interest in enforcing voter discrimination laws. 

With little federal support and little ability to pursue fair representation in court, it’s fallen to civic and voting organizations to battle to fill in the gaps, with grassroots actions like registration drives, and to help ensure that Native voters have a fair shot at political power. But these groups, too, are facing difficulties this spring, with many reporting that they have felt the financial pressure of the GOP’s war on all things “DEI.” 

Federal threats to criminalize foundations and nonprofits that focus on helping marginalized groups have donors spooked, meaning some Native voting rights organizations are facing uncertainty, while others have already been forced to downsize, said Nicole Donaghy, executive director of North Dakota Native Vote. She told Bolts, “These actions have impacted how funders are interacting with us, and whether or not they will decide to fund us as we carry out this democracy work.”

“There is a huge effort to attack our democracy and our rights as Native people to organize our communities,” she added. “What that will look like in the future is yet to be seen.”

Donaghy is wary that this funding squeeze is coming as the communities she serves face shrinking legal resources and fights off more restrictions to ballot access. Dov Korff-Korn, legal director at Lakota People Law Project, a group that has brought public interest lawsuits in North Dakota and other states, confirms that “attacks on civil society” have hurt the capacity of organizations like his to do civic outreach, raise funds, and seek relief from courts. 

There’s a “culture of fear,” Korff-Korn told Bolts, that’s constraining advocates’ capacity to fight attacks on Native rights and depleting resources. “We want to be growing, we want to be hiring more staff,” he added. “But we have been forced to embrace some sort of austerity because we are looking at a drop-off.”

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The Voting Rights Act of 1965, hailed as a landmark protection against racist suppression of Black Americans during the Civil Rights movement, has also been a lynchpin in the movement for the rights of Indigenous people. Typically, those protections are enforced through lawsuits brought directly by voting groups or individual plaintiffs. But in 2023, the Eighth Circuit Court of Appeals upended decades of precedent and ruled that private parties have no right to bring lawsuits under Section 2 of the VRA, which bars states and localities from denying the right to vote “on account or race or color.” 

Instead, only the U.S. Department of Justice can bring such lawsuits, a panel of judges said in a decision authored by the Trump-appointed David Stras.

That ruling came in an Arkansas case, but state officials in North Dakota, which also falls in the Eighth Circuit, jumped in to use it: The secretary of state said it should invalidate the redistricting lawsuit brought by the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe.

The tribes had already won in district court: A federal judge ruled in 2023 that the state’s map illegally “cracked” the voting block of the Spirit Lake Tribe to prevent a majority-Native district, and “packed” the Chippewa Band of Turtle Mountain into a single district to curtail their political influence in neighboring areas. Using the same theory tested in Arkansas, an Eighth Circuit panel overturned that ruling in May, finding that regardless of whether the map was discriminatory, the North Dakota tribes didn’t have the right to sue under Section 2 of the VRA.

“The voters in North Dakota are left with a discriminatory unlawful map, because of this extreme, disingenuous holding,” said Samantha Blencke, an attorney with the Native American Rights Fund who represented the tribes.

The plaintiffs are now asking the full Eighth Circuit to reconsider the panel’s decision. But as long as it stands, the DOJ is the only recourse for North Dakota’s tribes. 

And whatever interest the DOJ may have had in suing on behalf of Native voters in the past—as it did for instance in 2000 to protect majority-Native districts in South Dakota and to end at-large elections in Montana that diluted Native votes—that interest has plainly evaporated with the Trump administration. Since Trump’s return to power, his DOJ has dismissed nearly all attorneys in the civil rights division typically charged with enforcing the voting rights laws. 

Attorney General Pam Bondi has directed the division’s remaining staff to focus on investigating claims of voter fraud that have become a mainstay in Republican politics while dropping discrimination lawsuits.

“There is a law without a way to enforce it,” Blencke said of the federal VRA. “Without private enforcement and with only 2 or 3 attorneys left in the voting section, it means the Voting Rights Act is functionally dead in a vast part of our country.” 

Added Donaghy, of North Dakota Native Vote, “We should have the right to challenge unfair redistricting maps.”  

Nor is there much chance that North Dakota’s state government steps in to recreate a legal path for tribes. Minnesota last year became the first, and so far only, state in the Eighth Circuit to pass a law that explicitly guarantees to individuals the right of action that was eliminated by the federal courts. Blenke said “there is little appetite” for similar protections in states in the circuit with large Native populations, many of which are dominated by conservatives. 

The remaining route for the tribes to win fair legislative maps—or roll back other suppressive laws—is to elect state lawmakers who would support that. But this goal, too, gets caught in a loop of inadequate representation; North Dakota’s electoral maps are drawn by legislators, not an independent panel, and as long as gerrymandered maps remain in place, their ability to build a coalition in the legislature is limited. 

For Mark Gaber, senior director at the Campaign Legal Center, a national organization that represented the tribes in court, the Eighth Circuit’s ruling and the ensuing impasse could lead the other states that make up the circuit to step up voter suppression. 

“It creates an environment where bad actors think they will have the space to discriminate,” Gaber told Bolts. “It is basically giving carte blanche for discrimination in voting.”

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Donaghy founded North Dakota Native Vote in 2018, frustrated by new rules that she thought were threatening ballot access for Native voters.

North Dakota Republicans passed a voter ID law in 2013 that required voters to provide a document with a physical residential address to cast a ballot. The reform came shortly after two counties with predominantly Native populations helped provide the winning margin in the 2012 U.S. Senate election for Democrat Heidi Heidkamp, an upset decided by under 3,000 votes. 

The new rules risked adversely affecting Native voters living in the state’s vast, rural areas and reservations where most people don’t have traditional physical addresses, but instead rely on Post Office boxes to receive mail. Several tribes, including the Spirit Lake and the Standing Rock Sioux, sued over the new rules, but federal courts eventually let them go into effect in the 2018 midterms, which saw Heitkamp lose her reelection bid.

Donaghy thought an organization focused on voting rights could counter these restrictions, and over the following years, North Dakota Native Vote worked with tribal governments and with legal centers like Lakota People’s Law Project. They worked to distribute IDs that would allow people to register and to get physical addresses assigned to voters that lacked them.

On the Spirit Lake Reservation, this coalition worked to overcome antipathy towards electoral politics created by generations of attacks on Native rights that made it so “we couldn’t just go to the polling sites and cast our votes like anybody else,” says Jackson-Street, the tribe’s chair. They came up with a plan to “fight back,” she explains. “We were going to get our people to the polls. We were going to transport them. We were going to make sure they had tribal IDs that they could use.”

The Spirit Lake Tribe won major concessions from North Dakota’s state government in 2020, when the secretary of state agreed to settle their lawsuit over the voter ID rules shortly before it was set to go to trial. The settlement required the state to accept tribally designated street addresses and to coordinate with tribal leaders to help Native residents access state IDs.

But parts of the lawsuit that forced this settlement relied on the VRA’s Section 2. Under the Eighth Circuit’s ruling, the tribes would no longer be able to bring it in the same form today.

And it’s still a struggle for many Native voters to meet the requirements set by the voter ID laws: In the 2024 election, poll watchers in North Dakota saw that voters with tribal IDs were still being turned away. It’s as important as ever for civic groups like hers to continue their role as election watchdogs, Donaghy says, but she has grown nervous in recent months.

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This spring, Donaghy is watching her peers in other states warn that their funding has dropped off, forcing them to downsize and cut back on their work. North Dakota Native Vote is part of a nationwide network of Indigenous civic groups that meet regularly ​​to share strategies and learn best practices that have worked in other communities. 

“Having these resources available to our Native communities is essential for us to engage in political discourse,” Donaghy said. 

Bolts has heard from organizations in several states that have had to pull back their organizing. The Alaska-based Get Out the Native Vote has been a lifeline for voters in remote areas of the state that are not connected to the road system and are only accessible by boats, small planes and snowmobiles. When the state failed to set up a polling place in the remote village of Newtok in western Alaska last November, for instance, the organization sent a volunteer on a single-engine airplane the day before the election to ensure people could cast their ballots through a vote-by-fax process. The group has also helped bat off proposals to shorten Alaska’s early voting period and end automatic voter registration.

But Michelle Sparck, the organization’s director, says that the financial crunch driven by the “nonprofit killing atmosphere” means that Get Out the Native Vote is now in danger of no longer functioning as a “year-round operation.”

“We are the boots on the ground in Indian Country, but with our funding insecurity, there will be less ability to meet the needed civic balance of our time without federal agency, state and courts support,” she told Bolts. Alongside her allies, she is now scrambling for solutions. Her group’s parent organization, the Cook Inlet Tribal Council, says it’s also trying to find new partners to support this voting advocacy. 

“That important work will continue,” the tribal council told Bolts in a written statement.

Another group in Donaghy’s network, Arizona Native Vote, has cut work hours for the roughly 20 matriarchs that do civic outreach on the Hopi Reservation, the Navajo Nation, and across Apache County. The group’s founder, Jaynie Parrish, says some of the foundations they’ve relied on in the past are lowering their grants or stopping funding civic work altogether. 

“All of it stems from fear, whether from being prosecuted or from losing money,” she told Bolts. She thinks that funders “have to watch their backs” since Bondi’s directive in February for the DOJ to “investigate, eliminate and penalize” DEI programs. “Folks that were really excited to fund voting initiatives and civic education are now saying they can’t promise anything.”

Parrish stresses that many voters rely on assistance from nonprofits like hers to navigate the complex process of registering to vote using a tribal ID. 

In the last election, the organization’s workers helped manage two bomb scares at polling sites, provided language accommodations to Native people that did not speak English well, and drove hours to track down voters in remote parts of the desert to cure ballots that would have otherwise been discarded due to Arizona’s flawed signature verification process. The organization has also battled voter ID proposals that would have added to the burden faced by Native voters, helping defeat a 2022 measure. 

These fights are critical for Indigenous peoples to advocate for the rights guaranteed to their tribes by the Constitution and by the treaties that placed tribal lands under federal trusts, says Zachery King, a member of the Turtle Mountain Band of Chippewa and another plaintiff in the lawsuit against North Dakota’s districts. 

“From the federal level, they don’t want to deal with us. They are continuously trying to get out of the things they agreed to in these treaties,” he said. “They pass it along to the states, but the states don’t want to deal with us either.”