Ask those presidential candidates to explain the mess we call an election

A story that journalism should report often: Our election framework needs a serious fix

Candidates are telling us why they should be the next president. And there are a lot of them. At least 20 Democrats, a major independent, and two Republicans, including the incumbent, Donald J. Trump.

Many even have policy proposals that should get notice in Indian Country. One would return “control” of the Black Hills to the Lakota people. Several promise universal health insurance. Several have track records working with tribes as governors. At least two have serious approaches to climate change. 

Yet most have little or no footprint when it comes to treaty rights or policy issues that impact Indian Country. Those issues are not found on their campaign computer screens.

Still most voters in Indian Country will sort through the lists hoping to find that one candidate who best understands the history and relationship between America’s Indigenous people and the government that is the United States. Who will work to help Indian Country reach its potential? Who will best honor the treaties? Who will bring more of our voices into the body politic at all levels from Congress to the cabinet?

Who is that? Before picking any candidate we should consider the process itself. The way the United States picks its head of state makes no sense. This is a story that journalism should report often: The election framework needs reform.

Let’s start with the big picture. The point of an election is to ensure representation. It is a fact that American Indians and Alaska Natives are underrepresented in every government office. The result comes up short no matter which metric is used, population, property and land base, or historical promises.

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#RepresentationMatters

There are a lot of ways to calculate the population. Let’s use the Census Bureau’s count of American Indians and Alaska Natives alone or in combination with other races. The total is 5.2 million or 1.7 percent of the US population.

And how does that compare to any level of governance?

Congress doubled the number of Native Americans serving in the House to four, two Democrats and two Republicans. That equals 2 out of 435, plus another 100 in the Senate, or three-quarters of one percent. (The actual number is .74766355 percent.)

Congress even fails the representation test compared to the demographics of the nation. The 116th Congress is the most diverse ever, yet women only make up 25 percent of the Senate and 23 percent of the House. And the freshman class in the House includes at least 23 people of color, or about 22 percent. (All of the most recently elected senators are white.) That’s one of the closest markers: People of color make up about 26 percent of the country.

Charles-Curtis
Vice President Charles Curtis, Kaw Tribe. Photo: Library of Congress.

And in the executive branch? There has only been one tribal citizen to serve as a president or vice president in the entire history of the country. And in the cabinet? Historically the commissioner of Indian Affairs and now the assistant secretary of the Interior (for Indian Affairs) or assistant secretary for Health and Human Services represents the ceiling (plus one solicitor in the Interior Department). Compare that to Canada. When the Trudeau government began there were two First Nations' represented as ministers, including the attorney general. (A number that is now back to zero representation.)

The lowest representation in the U.S. government is at the federal courthouse. There are 870 Article III judges -- those appointed for life -- and there is one tribal citizen, U.S. District Judge Diane Humetewa in Arizona. She is a member of the Hopi Tribe. And the math? That would be a little better than one-tenth of one percent. Or 0.11494252873563218 percent. 

Of all the data this is the most extraordinary. Indian Country has a long history of relations before the federal courts, cases that define tribal sovereignty, who is a tribal citizen, and the status of our own lands. And so to not be represented in the judicial sphere is an absolute failure of democratic institutions.

Whose property rights? A lesson from Standing Rock

The United States government was designed to elevate property rights over representation. Officially, at least, the founders claim that property rights are supposed to be as important as individual freedoms. James Madison said as much in Federalist 54: “Government is instituted no less for the protection of the property than of the persons of individuals.”

But it was clear that ultimately property was more important than individual rights. Madison later wrote that protection of “the faculties of men, from which the rights of property originate ... is the first object of government.”

But the first object of government does not include the property owned by Indian Country.

The Department of Agriculture estimates that 60 percent of the land in the country is privately owned by individuals and companies; the federal government owns 29 percent; state and local governments own nine percent; and land owned by tribes accounts for about two percent. That means tribes are huge landowners with some 55 million acres from coast to coast.

It’s funny but that two percent metric ought to be in play again. Indian Country should have a say two times out of every 100 decisions involving land. That’s preposterous, of course, because some landowners have more say than others.

In South Dakota (only the latest example) that picking one property right over another is the legislative protection for an oil pipeline. A new law that the state calls “necessary for the support of the state government and its existing public institutions” and its design is to prevent disruptive demonstrations against the Keystone XL pipeline. Both property rights and free speech are less important than this government-sanctioned private enterprise.

And the same governmental power is used to strip property owners, land owners, of their very property. A Canadian company, TransCanada Corp., last year filed “eminent domain” actions against farm owners that did not want their land used for the purpose of a pipeline.

The property rights of Native people have been ignored throughout the country’s history. Where to begin? This is a long list. My family’s land was taken for an Army air base in Idaho. Tribes in the midwest have lost land (and communities) for dams. And under current law a tribe has to exist before 1934 to have the protection of trust land (double-edged sword that it is). (The subject of a presidential tweet on Wednesday.)

Property rights as a governing framework? Perhaps it should be tried sometime. 

The supreme law of the land

There is no question what the Constitution says about treaties with tribal nations. The supremacy clause found in Article VI, Clause 2 establishes treaties as the supreme law of the land.

Yet the ignorance of that supremacy clause is pretty much a history of the country. (Again, there is a long list.) But in the area of governance, or representation, the failure of the supremacy clause is particularly egregious.

Congress had the idea in 1830 that a delegate from the Choctaw Nation would be a good thing. So it included the provision in the Treaty of Dancing Rabbit Creek. Other treaties had this provision.

An official delegate in Congress still makes sense because it would codify the representation of Native people. 

There are six Delegates in Congress now, representing Puerto Rico, Washington, D.C., Guam, U.S. Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands. Indian Country is a natural fit in this picture. The Navajo Nation, a geographic, political entity, is far larger and has more people than the Virgin Islands, Guam, American Samoa or the Northern Mariana Islands.

The House could make this treaty right so with a majority vote. One vote by the majority party and there could be representation for tribal nations in the halls of Congress.

Indianpendent voters

Beyond Indian Country there is another question we should ask every candidate? Why is the system still rigged to favor only Democrats and Republicans?

The world has changed. Independents outnumber Democrats or Republicans. 

A survey by Pew Research in 2016 found that 38 percent of those surveyed describe themselves as Independents, up from 32 percent in 2008 and 30 percent in 2004. The big picture, Pew found, is that “Independents today are more numerous that at any point in the last 70 years.”

So the question for any candidate ought to be: How does a country with a rigged, two-party system, reinvent itself as a multiparty democracy?

There are many ways to do that, examples from other countries where the democratic institutions are more reflective of the population. In a paper for Stanford’s Social Innovation, author George Cheung made that case.

“As a generation, millennials are more ethnically diverse, hold more progressive views on social issues, and are more likely to favor a strong role for government than previous cohorts. How does this translate into affiliating with political parties?” Cheung asked. “A poll conducted by the Pew Research Center in early 2014, found that about half of millennials did not identify with either the Democratic or Republican political party, an increase from 38 percent in 2004. Further, only 31 percent of millennials saw big differences between the two parties, compared to 43 percent of all respondents in the same survey.”

Cheung linked the need for reform with voter apathy. “Modernizing our system of election administration is critical to removing barriers to participation and instilling confidence that each vote will be counted,” he wrote. “But if voters do not have meaningful choices at the ballot box, why should they bother to show up?”

It’s impossible to funnel the ideas of a country with 320 million people into two options. We need a better path for third, fourth and fifth parties, that starts with ballot access. The Green Party only made the ballot in 20 states. The Libertarian Party is in a little stronger shape, but still short of fifty state access. There is also the Constitution Party and it’s on the ballot in nearly 30 states.

There are a lot of reforms worth considering, ranging from ranked choice voting to a presidential runoff election. Four years ago a run-off requirement would have meant a second ballot between Donald Trump and Hillary Clinton. One candidate would have had to get an actual majority before winning the election (instead of 46 percent).

(And, as I have written before, I would love to see Indian Country have its own presidential primary because it would force candidates to answer questions about treaties, land, and even property rights for Native people.)

Investing in fairness

Even with the system now in place there is a problem. It favors status quo and yet some governments want to skew the vote even more in the cause of less representation.

A report on voting in January by the Native American Rights Fund and its Native American Voter Coalition found that over the past decade, “a range of new suppressive registration and voting laws and practices have been implemented including: Restrictions on the hours, days and places that people can register and vote; Requirements that people provide government issued identification before voting; the removal of eligible voters from the lists of registered voters.”

“Opponents of these measures argue that these laws disenfranchise large numbers of African Americans, Latinos, the poor, the elderly and the young,” the report said. “Little or no attention has been paid to whether Native Americans face similar substantial barriers in trying to register and vote in non- tribal elections.”

The voting rights coalition looked at elections in Arizona, New Mexico, South Dakota and Nevada.

The problems began with the first step, registration. “It was the number one reason cited in all four states for failing to register. The second most cited reason in all four states at a consistent rate was missing the deadline, and the third was a lack of interest in politics,” the Native American Voting Rights Coalition said.

The thing is: There is a solution. Voter registration works better when matched with other services, such as health care, motor vehicle registration or drivers’ licenses. 

The key point is that governments, all governments, should be encouraging every citizen to vote instead of making each and every step more difficult. Anything less is unfair and anti-democratic. Period.

The idea of democracy pre-dates the United States. Tribes across the Americas had a variety of tools for citizen participation. Some used deliberative councils and others had a variety of designated, specific offices such as the peace chief. The People were involved.

The goal still must be for every citizen to have a say. 

So before we pick a presidential candidate, any candidate, let's hear their plan to improve the mechanics of representation.

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Mark Trahant is editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter - @TrahantReports

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