Lawsuit seeks absentee voting for tribal members who don't live on North Dakota reservation

A federal lawsuit is asking a judge to allow absentee voting for members of the Three Affiliated Tribes of the Fort Berthold Reservation. Since 1986, the tribe has required non-resident voters to return to the North Dakota reservation to vote — even though it liberally grants absentee ballots for resident members.

060320.N.DR.ELECTIONDAY7.jpg Voting stickers lay on a table for people to pick up as they walk out of the Davison County Fairgrounds after voting on Tuesday morning in Mitchell. (Matt Gade / Republic)
Forum News Service file photo

FARGO — Members of the Three Affiliated Tribes of the Fort Berthold Reservation are suing in federal court to strike down a requirement that off-reservation tribal members must return to the reservation to vote.

The lawsuit, filed Tuesday, Sept. 29, in U.S. District Court in North Dakota, argues that the “return to the reservation to vote” requirement violates non-members’ rights under the tribal and U.S. constitutions and other laws, including the Voting Rights Act.

The suit seeks a declaratory judgment and rules allow for at least an initial decision in as few as 10 days — in time to allow mail-in ballots to be sent for the Nov. 3 tribal election, Raymond Cross, a lawyer and one of the plaintiffs in the lawsuit, said Thursday, Oct. 1.

“You can do all these things if the federal judge is inclined to do it,” he said.

The “return to vote” requirement, imposed in 1986, fails to take into consideration life circumstances, including advanced age, physical disabilities, military service obligations, college or trade school commitments or family responsibilities of off-reservation members, according to the lawsuit.


Cross, for example, lives in Tucson, Ariz., more than 1,500 miles away, and has spinal cancer that hinders him from travelling.

An estimated 75% to 80% of tribal members live off the reservation. Yet, members who reside on the reservation can request a mail-in ballot for virtually any reason, including merely saying they will be away from the reservation, which has its tribal headquarters in New Town, N.D., Cross said.

“It’s quite liberal,” he said, referring to the access to mail-in ballots for resident tribal members. Cross, a professor emeritus of the University of Montana School of Law, asserts that the disparity in treatment between resident and non-resident members is unfair and a violation of constitutional and statutory equal protection requirements.


  • North Dakota tribal court asked to allow absentee voting

“Those are the sort of equal protection problems,” that should be heard by a federal judge, he said.
The requirement for non-resident tribal members to return to the reservation to vote is even more unfair in the midst of the COVID-19 pandemic. Both Arizona and North Dakota have spiking cases, he said, and the lawsuit notes that there are no travel recommendations for 26 states.

“You’re putting people like me who have to travel at risk,” Cross said.

The suit argues that non-resident voters’ rights are violated and the requirement should be struck down as unconstitutional and illegal.

The suit requests appointment of a special master to oversee mail-in balloting in the 2020 tribal election. Also, starting in 2022, the suit seeks to eliminate segment voting, which divides the reservation into seven districts, and to replace it with seven members who are elected at-large, by resident and non-resident tribal voters.


“I think the facts are pretty strong in our favor,” Cross said. “I think the law is in our favor and I think we’ll get some of the relief we ask for.”

The Three Affiliated Tribes are also known as the Mandan, Hidatsa and Arikara Nation.

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