Mark Trahant

The case for appointing tribal delegates to the next Congress #NativeTruth

There is a poem I like by Ogden Nash that was written in 1940.

I find it very difficult to enthuse over the current news.

Just when you think that at least the outlook is so black that it can grow no blacker, it worsens,

And that is why I do not like the news, because there has never been an era when so many things were going so right for so many of the wrong persons.

So right for so many of the wrong persons. How can that be in a democracy?

Well, the democracy that is the United States has been twisted beyond recognition -- and beyond what would be considered democratic norms for any country in the world. This democracy needs fixing.

The irony here is that the very idea for American democracy has roots in Indian Country.

Benjamin Franklin saw the richness of the cultures -- and the governments -- that were already here. He wrote in a 1751 letter “it would be a strange thing if Six Nations of ignorant savages should be capable of forming a scheme for such an union, and be able to execute it in such a manner as that it has subsisted ages and appears indissoluble; and yet that a like union should be impracticable for ten or a dozen English colonies, to whom it is more necessary and must be more advantageous, and who cannot be supposed to want an equal understanding of their interests.”

This was new to Franklin because Europe had nothing like it.

So what is a “democracy?” What is the goal?

Democracy-scholar Robert Maynard Hutchins once defined democracy this way: "Every member of the community must have a part in his government. The real test of democracy is the extent to which everybody in society is involved in effective political discussion."

Every member involved in effective political discussion.

Effective political discussion is a problem when North Dakota requires a government-issued ID with a physical address in communities where there are no physical addresses. Even worse this changes the rules used in the primary election. So a voter who voted a couple of months ago could be refused a ballot this time around.

No worries ruled the majority on the Supreme Court (and the U.S. Court of Appeals for the 8th Circuit) there is plenty of time -- a month -- to fix the problem. Uh. No. (Not that the Standing Rock Sioux Tribe won’t try. External affairs director Danielle Finn tweeted that plans are underway for an emergency addressing system.) The thing is there are lots of ways to fix this problem ... but that's not the outcome desired by those who would prevent Native Americans from voting in the first place.

As Justice Ruth Bader Ginsburg wrote in her dissent: “The risk of voter confusion appears severe here because the injunction against requiring residential-address identification was in force during the primary election and because the Secretary of State’s website announced for months the ID requirements as they existed under that injunction. Reasonable voters may well assume that the IDs allowing them to vote in the primary election would remain valid in the general election.”

“Why is it getting harder and harder for Native Americans to vote?” asks Standing Rock Chairman Mike Faith in a news release. “This law clearly discriminates against Native Americans in North Dakota. Our voices should be heard and they should be heard fairly at the polls just like all other Americans.”

Indeed Faith raises a higher standard. He says tribal citizens -- even with post office boxes -- live “in accordance with the law and treaties, but now all of a sudden they can’t vote.”

So much for a “reasonable” course. Unless, of course, the real goal is making it more difficult for Native citizens to vote. An act carried out by North Dakota legislature, the courts, and those in power. The last act in a democracy in name only.

There was once a country called Rhodesia. It was run by a minority of white people while the larger population, Africans from a variety of tribes, were left out. The entire world condemned Rhodesia as a non-democratic state.

So let’s look at the numbers: Just before its collapse, the white population was about 300,000 and the black population was 6.8 million. That’s a ratio of 1 vote for every 22000 voters.

We are not there yet. But the numbers representing who can vote -- and who can’t -- are staggering nonetheless.

The current population of North Dakota is 755,000. And in the District of Columbia, where I live, it’s just about 700,000. North Dakota gets two votes in the United States Senate, one in the House, while citizens in the district get zero votes in the Senate and a non-voting delegate in the House. It's worse for Puerto Rico with its 3.4 million U.S. citizens.

Go down the list and the numbers are overwhelming. Vermont’s 625,000 residents have two United States senators, and so does New York’s 19 million. That means that a Vermonter has 30 times the voting power in the Senate of a New Yorker just over the state line. The biggest inequality between two adjacent states.

The nation’s largest gap, between Wyoming and California, is more than double that, 60 to 1.

California is the stark example. It takes 22 of the smallest states to equal California’s population; that’s an imbalance of 44 votes in the Senate to two. Add it together and 62 Senators represent one quarter of the population. Six from the big states represent only a quarter.

I know the argument is that the United States is not a democracy but a republic. But when the Constitution was drafted the imbalance between the large states and the small states was much, much less. This imbalance explains so much about the divisions over who gets appointed to the Supreme Court, voting rights, Medicaid funding, and even the Senate itself.

We are moving toward a Rhodesia democracy. And it’s not defensible in any conversation about self-government.

The national narrative holds the Constitution as a near sacred text. But if you go back to the so-called Connecticut Compromise it was a deal that passed the convention by a single vote. Think about that, a shift of one vote and that sacred Constitution would have resulted in more of a parliament than a Senate.

But even the House is less than democratic. The United States clings to a system called “first past the post,” which means members of Congress represent single member districts that are often drawn to give one party an advantage. Most countries in the world use a proportional representation system so that the legislature is more representative of the population.

The world is moving towards more democracy, not less.

“The structure of elections and a nation's choice of electoral system can have profound implications for the effectiveness of democratic governance. It is no surprise, then, that reformers in many nations continuously strive to improve the way their governments are elected. Most countries regularly reflect on how well their systems are working and consider structural improvements--and such changes are implemented more often than many casual observers may realize,” write Matthew Shugart and Justin Reeves in the Oxford Bibliographies.

In other words: Best practice includes rethinking the structure of elections.

This next election will decide the makeup of state legislatures. And that will determine how these districts are drawn, and how competitive (or not) they are.

According to research by the Center for Public Integrity we are at a low point. “A 2015 study published in the University of Chicago Law Review by Nicholas Stephanopoulos of the University of Chicago and Eric McGhee of the Public Policy Institute of California found the plans in effect today are the most extreme gerrymanders in U.S. history,” the center reported. “The major redistricting tactic is called ‘packing and cracking.’ If the Republicans were to draw the maps, for example, they would pack Democratic voters into a few heavily blue districts and then crack the remaining Democratic voters in districts that would swing red. A relatively new measurement created by Stephanopoulos and McGhee called the “efficiency gap” quantifies the impact of this strategy by counting votes cast for losing candidates and those beyond what was necessary for the winner.”

Only six states have independent commissions that draw congressional and legislative boundaries.

A sample Maine ballot with ranked choice voting. Voters pick first choice, second, etc. Each round the candidate with the fewest votes is dropped until one candidate has earned a majority vote.

Another idea comes from Maine. Voters approved a system with an instant runoff election. So at the polls voters pick their first favorite, second favorite, etc. That means the candidate who wins will have a majority.

Ideas. Opportunity. Words that codify democracy

On the other edge of the country, Alaska, it is all but certain to elect its next governor with a minority of the vote. It’s a three-way contest and there are no provisions for any runoff. Winner takes all. Even if that means the minority rules.

American Indians and Alaska Natives are shortchanged by the many failings in the structure of democracy. We are already small in numbers and in the current Congress the representation totals slightly more than one third of one percent.

And yes, that number could go up after election day. But is it fair for any elected House member to represent their own constituency and Indian Country? Is it even possible? The most Native district in the country -- Arizona’s 1st Congressional District -- is only less than 25 percent comprised of tribal citizens.

In a purely proportional system, Indian Country would have a lot more representation.

Amber Ebarb, Tlingit, who does voting analysis for the NCAI Policy Research Center, calculates that in a proportional system there would be at least seven members of Congress and two U.S. Senators. But in a district-based, first past the post system, this is never going to happen.

Joseph Marion Hernández was the first Latino in Congress. He was a delegate from the Florida Territory in 1822. (Photo: Library of Congress)

It turns out there is one fix for this problem. And it’s a treaty-based solution.

Congress has had delegates since 1794. The first, James White of Ohio, wasn’t even sure he would serve in the House or the Senate. But it was decided that he could be a an “envoy” to Congress. He would not be able to vote. But he could serve on committees, hire a staff, and be recognized in Congress.

Today there are six Delegates in Congress, representing Puerto Rico, Washington, D.C., Guam, U.S.Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands.

Indian Country should be included in this equation. 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.

Congress was ready to do this more than a century ago. In the Choctaw Treaty of Dancing Rabbit Creek of 1830 there was a provision for a “Delegate to Congress.” This same treaty provision is included in the Cherokee Constitution. “In accordance with Article 12 of the Treaty with the Cherokees, dated November 28, 1785 (Treaty of Hopewell), and Article 7 of the Treaty with the Cherokees dated December 29, 1835 (Treaty of New Echota), there shall be created the office of Delegate to the United States House of Representatives, appointed by the Principal Chief and confirmed by the Council.”

Congress could make this happen with a majority vote. It is not a Constitutional act. For example: The Delegate for the District of Columbia was originally created in 1871, forgotten a few years later, and then restored in 1971.

“Since the first Delegate was sent to Congress, the House has struggled with the role Delegates should play,” the Congressional Research Service noted. “Some Members, noting that the Constitution, in Article I, Section 2, requires that the House be made up of representatives ‘chosen every second Year by the People of the several States,’ have expressed concerns that allowing Delegates to have the same rights and responsibilities as Members would be unconstitutional. Because Delegates, by definition, do not represent states, Members have on several occasions debated what rights such delegates should exercise in the House.”

Full authority or not, at least congressional delegates are there. Seated. At the table. Their very presence would be a reminder about the unique political status of tribal governments.

How could this work? Easy. Tribal nations with large populations should have a delegate. And perhaps smaller tribes could band together by region or language group and have a regional delegate. If population is the criteria, and perhaps it ought to be, the total ought to be at least seven delegates. Proportional democracy.

Then every member of the nation -- including tribal nations -- would be have a part in this government. The United States would finally pass the test of democracy, the extent to which everybody in society is involved in effective political discussion.

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


Are you using the new mobile platform? Get Indian Country Today on your phone.

Google Play (Android)


Indian Country Today will stream a live coast-to-coast newscast on election day partnering with FNX / First Nations Experience and Native Voice One. The newscast will begin at 6 pm Pacific / 9 pm Eastern. Hashtag: #NativeElectionNight

Comments (3)
No. 1-3

Cases that should have occurred and happened 40 years ago when Congress was more bi-partisan and cooperative. The realities are that considering the efforts of the Democratic Congress to change the Constitution and the Corporate Media to provide "cover" to a White House (2008-2016), the editor's comments are all but a dream.

David Hollenshead
David Hollenshead

Full Nation within a Nation Status would require Representatives and Senators to represent America's First Nations. It would also require full control of the borders and border areas of America's First Nations...