North Dakota tribes ask circuit judges for rehearing of voting rights case
Jamie Azure, chair of the Turtle Mountain Band of Chippewa, speaks during the Tribal Leaders Summit in Bismarck on Sept. 4, 2024. Turtle Mountain, Spirit Lake Nation and three tribal citizens are challenging a ruling in a voting rights case. (Michael Achterling/North Dakota Monitor)
The Turtle Mountain Band of Chippewa, Spirit Lake Nation and three tribal citizens this week asked the full 8th Circuit Court of Appeals to review a three-judge panel's finding that they lack standing to bring a voting discrimination case against the state of North Dakota.
In a 2-1 decision earlier this month, the panel overruled a North Dakota federal district court's decision that a redistricting plan adopted by the state in 2021 diluted the voting power of Native voters.
'Turtle Mountain fought hard for a fair and legal map. When the state draws unlawful districts, Courts must step in to protect voters — not pave the way for injustice,' Turtle Mountain Band of Chippewa Chairman Jamie Azure said in a statement published by the Campaign Legal Center, one of the organizations representing the plaintiffs in the suit. 'We will continue to fight for fair representation.'
Appeals court rules against North Dakota tribes in voting rights case
The panel's decision didn't speak to whether the map itself was discriminatory; instead, the judges found that private individuals cannot use a key federal civil rights law as a vehicle to file cases under Section 2 of the Voting Rights Act, which outlaws race-based voting discrimination.
The panel in its ruling sent the case back to North Dakota U.S. District Judge Peter Welte with instructions to dismiss the lawsuit. If its ruling stands, North Dakota would revert back to the 2021 map.
But if the plaintiffs' request for an en banc rehearing is granted, the case would go before all 11 judges on the 8th Circuit for review.
'Section 2 is the foundational statute that Congress enacted to fight the scourge of racial discrimination in voting, but citizens in this circuit can no longer enforce the right it provides them,' the plaintiffs argue in a brief urging the full appellate court to consider the case.
Private individuals and groups previously could file discrimination lawsuits against governments under just Section 2 of the Voting Rights Act without having to invoke Section 1983, a separate civil rights statute.
Then, the 8th Circuit in a controversial 2023 ruling on an Arkansas voting rights case found that Section 2 alone doesn't give private parties the right to sue. Instead, the circuit declared that it is the responsibility of the U.S. Attorney General to file Section 2 discrimination cases.
Tribes, state argue redistricting case to federal appeals court
For more than a year, the question remained open as to whether Section 1983 offered a viable alternative for bringing such Voting Rights Act claims. In a May 14 ruling, the three-judge panel decided it does not.
In a majority opinion, the panel wrote that the language of the Voting Rights Act indicates that Congress didn't intend for citizens to file race discrimination claims through Section 1983.
The lone dissenting judge on the panel — Chief Judge Steven Colloton — noted in his opinion that private plaintiffs have brought more than 400 actions under Section 2 since 1982.
The plaintiffs in their brief point out that the 8th Circuit is the only appellate circuit in the country to rule that Section 2 cannot be enforced through lawsuits brought by private citizens. The circuit includes North Dakota, South Dakota, Minnesota, Iowa, Illinois, Missouri, Nebraska and Arkansas.
'Outside of this circuit, every American citizen can rely on an unbroken line of Supreme Court and circuit precedent to enforce the individual rights given to them by Congress in the Voting Rights Act,' their filing states. 'But as a result of the panel decision here, and the prior decision in Arkansas, American citizens in this circuit are denied that right.'
The lawsuit was triggered by a redistricting plan adopted by the North Dakota Legislature in 2021 that placed the Turtle Mountain and Spirit Lake reservations in new districts.
U.S. District Court Judge Peter Welte in 2023 ruled that the new map was discriminatory and ordered the Legislature to implement a new map that placed the reservations in the same voting district.
Three Native American lawmakers from that district were elected in 2024: Sen. Richard Marcellais and Rep. Jayme Davis — both citizens of the Turtle Mountain Band of Chippewa — and Rep. Collette Brown, a citizen of the Spirit Lake Nation and plaintiff in the lawsuit.
'The fair map we secured led to a historic first — a Spirit Lake Nation member elected to the North Dakota Legislature,' Spirit Lake Nation Chairperson Lonna Jackson-Street said in a Wednesday statement published by the Campaign Legal Center, one of the organizations representing the plaintiffs in the case. 'This decision threatens that progress and weakens our voice in state government.'
Marcellais had previously served 15 years in the statehouse until he lost his bid for reelection in 2022. He was reelected in 2024.
Davis was first elected in 2022, then reelected last year.
If the 2021 map is reinstated, three state lawmakers would move to different districts, according to the North Dakota Secretary of State's Office. Rep. Colette Brown, D-Warwick, would go from representing District 9 to District 15. Rep. Donna Henderson, R-Calvin, would switch from District 15 to District 9B, while Sen. Kent Weston, R-Sarles, would switch from District 15 to District 9. They would all have to seek reelection in 2026.
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Hamilton Spectator
5 days ago
- Hamilton Spectator
In Oklahoma, Juneteenth highlights tribal slavery descendants' fight for recognition and citizenship
Juneteenth may mark the day in 1865 when enslaved people in Galveston, Texas found out they had been freed, but thousands of people in Oklahoma are still fighting for full citizenship in the tribal nations that once held their ancestors in bondage. Several tribes practiced slavery, and five in Oklahoma — The Cherokee, Seminole, Choctaw, Chickasaw, and Muscogee nations — signed reconstruction treaties with the U.S. in 1866 abolishing it three years after President Abraham Lincoln's Emancipation Proclamation. They granted the formerly enslaved, known commonly as Freedmen, citizenship within their respective tribes. Only one of those tribes, the Cherokee Nation, continues to fully grant the rights of citizenship . For descendants of people who were enslaved by tribal nations , Juneteenth is both a celebration of freedom for people of African descent and a reminder of their struggle to be fully embraced by the Indigenous communities with whom they share history and in many cases ancestry. 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'Our ancestors were Muscogee people of African descent,' said Damario Solomon-Simmons, an attorney representing Grayson and Kennedy whose ancestor was also a Freedmen in the tribe. 'We were transformed into 'Freedmen' by the Dawes Commission.' Their ancestors were also forced on the Trail of Tears, and after the Civil War they were granted citizenship and served in the tribe's legislative bodies, Kennedy said. 'We believe that the (Muscogee) Nation would not be what it is today without the bloodshed and tears of those African people,' he said. But, in 1979, the tribe adopted a new constitution restricting citizenship to Muscogee people 'by-blood.' Grayson and Kennedy's lawsuit countered that citizenship requirement is a violation of the 1866 treaty, and in 2023 a Muscogee Nation district court agreed. The Muscogee Nation's citizenship board appealed and is asking the Supreme Court to overturn that decision. 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While the descendants of formerly enslaved Seminole Nation tribal members had previously been granted citizenship, in 2000 the tribe voted to restrict citizenship to those who had one-eighth Seminole ancestry according to the Dawes Rolls, thereby disenrolling more than 1,000 citizens of African ancestry. In 2002, a U.S. district court ordered the tribe to reinstate their membership, however, today the descendants of those on the Seminole Nation's Freedmen rolls are only allowed to vote and sit on tribal council and are thereby not full citizens. 'They're using something that the United States used to separate us, and now they're using it to keep us in a very bad position by putting a lot of our people at a disadvantage,' said LeEtta Osborne-Sampson, a Freedmen member of the Seminole Nation and one of four who sit on its tribal council. She said members like her are not given access to others services provided by the tribal nation, such as education and housing assistance. 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'Today our tribal membership is based on the Dawes Rolls — a poisonous legacy from 125 years ago that took root and caused a myriad of membership issues for tribal nations, including Freedmen.' Batton, who remains in office, called for an open dialogue between Choctaw Freedmen, tribal citizens, elected officials, and the federal government. But since then, Freedmen descendants say that dialogue hasn't taken place. 'It became obvious, unfortunately, that it was an empty gesture,' said author and genealogist Angela Walton-Raji. Like many Freedmen descendants, Walton-Raji said her ancestors were both Black and Choctaw but were forced to enroll on the Dawes Rolls as a Freedmen only. 'It's very clear that there was an anti-Black sentiment then, as there is now,' she said. Randy Sachs, a spokesperson for the Choctaw Nation, said in a statement to The Associated Press that the tribe set up an internal committee and asked tribal members for comment on the issue, but over that two year period they only received about 20 calls - more than half of which were from a single family. 'Determining our membership is an essential part of defending our sovereignty, and we will continue to listen to a variety of voices,' he said. There has never been a legal challenge to the tribe's 1983 constitution, and Walton-Raji said many Freedmen descendants either don't know that part of their history, because it is not taught in schools or fully acknowledged by the tribe, or do not have the funds to mount a court case that could last decades. Chickasaw Nation The Chickasaw Nation jointly signed its 1866 reconstruction treaty with the Choctaw Nation. However, unlike the Choctaw, the Chickasaw Nation never recognized the people it held in slavery as citizens of the tribe. 'They broke the treaty, they never gave citizenship to their Freedmen. So up until statehood, Chickasaw Freedmen had no country, they were never citizens of any nation,,' said Walton-Raji, who is also a co-founder of the Choctaw & Chickasaw Freedmen Association. Oklahoma became a state in 1907. The Chickasaw Nation did not respond to requests for comment. Since they were never granted citizenship, their descendants are at the greatest disadvantage when it comes to any legal claim to citizenship in the Chickasaw Nation, Walton-Raji said. In 2021, following the Cherokee Nation's amendment to its constitution that granted full citizenship to Freedmen descendants, Dept. of the Interior Secretary Deb Haaland encouraged other tribes 'to take similar steps to meet their moral and legal obligations to the Freedmen.' Chickasaw Nation Gov. Bill Anoatubby responded by saying that the tribe's citizenship is a matter of tribal sovereignty. Error! Sorry, there was an error processing your request. 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Atlantic
5 days ago
- Atlantic
When the Military Comes to American Soil
Domestic deployment of active-duty U.S. military, as is now taking place in Los Angeles, is both rare and perilous. Not since the 1992 riots in that same city has the country seen such a use of the armed services.. But that was a one-off. The more relevant, and worrying, parallel may be the period from 1957 to the end of 1968, when military forces actively patrolled U.S. soil on eight separate occasions. Perhaps the recent deployment is just the beginning—not a one-off, but a wave. Those eight deployments resulted in just one fatality—a testament to remarkable restraint by the military. But many of the norms that fostered such restraint—bipartisan consensus, respect for institutional expertise, and well-planned rules of engagement—are today weaker, or gone altogether. What's more, whereas U.S. marines were previously accompanied by Army military police trained in crowd control and de-escalation, they are now deployed alone, an unsettling break with past practice. The 12 years spanning 1957 to 1968 were a period of great societal tumult and revolution, especially over race and the Vietnam War. Of the eight deployments, two were to enforce desegregation court orders, most famously at Little Rock, Arkansas, in 1957. Four were to quell riots, three of which were part of the numerous outbreaks across the country that followed the assassination of Martin Luther King Jr. in 1968. And the remaining two were in response to protests: one to protect a famous 1965 march of civil-rights activists in Selma, Alabama, to push for the Voting Rights Act, and the other to tamp down a forgotten and chaotic attempt by anti-Vietnam protesters to blockade the Pentagon in 1967. Adam Serwer: The tyrant test That 1967 deployment was perhaps the most extraordinary. In a surreal prelude to the confrontation, as the rock band the Fugs played, Abbie Hoffman and Allen Ginsberg chanted to levitate the building, turn it orange, and exorcise its demons—a ritual humorously sanctioned in the protest permit. (The General Services Administration did, however, stipulate that the Pentagon could be levitated no more than three feet, to protect the building's foundations.) Although roughly 50,000 demonstrators marched to the Pentagon, about 2,500 took part in a direct assault on the building. They surged up the steps—some smashed windows and tried to force open the doors, while others hurled objects and splashed paint on the soldiers stationed inside. Military police from the 503rd MP Battalion formed the first line of defense inside the entrance, physically blocking and repelling protesters who briefly breached the glass doors and entered the foyer. As pressure mounted, commanders deployed paratroopers from the 1st Battalion, 325th Infantry, 82nd Airborne Division, who engaged demonstrators outside the entrance and helped stabilize the scene. By day's end, 21 civilians were reported injured—seven treated at the scene and 14 hospitalized—but, remarkably, no fatalities had occurred. Indeed, this absence of lethal force proved typical: The only fatality caused by active-duty soldiers during this 12-year period occurred during the 1967 Detroit riots. The low number of deaths is at least partly why, except for the 101st Airborne's deployment to Little Rock, most Americans barely remember these earlier domestic military interventions. Even in moments of widespread turbulence, the active-duty military exercised restraint overall. By contrast, people remember the Kent State massacre of 1970 because it was a bloody failure by the National Guard, during which four students were killed. Indeed, during this period, many police and National Guard units responded to unrest with heavy-handed tactics that resulted in many civilian injuries and fatalities. The Army's conduct during these deployments was far from flawless. In addition to credible allegations of excessive force, the Army carried out extensive domestic surveillance, often tracking civilians and protest groups without legal authority or oversight. And although its own use of force was generally restrained, its involvement helped blur the line between military and police roles. That blurring contributed to a long-term shift in civilian law enforcement—one that encouraged the adoption of military-style equipment and tactics, and helped lay the groundwork for the sort of aggressive police force that is common today. What accounted for the Army's restraint? Although society was as divided as it is today, political elites were not yet polarized and still placed trust in apolitical expertise. Leadership and lawyers at the Justice Department and the Pentagon, and leadership in the armed services, worked closely with senior officers in the Army to develop standing operating procedures and situation-specific rules of engagement aimed at minimizing the use of force. Notably, that restraint came from the Army specifically, especially the military police. Historically, Army military police and infantry have often been deployed together during civil disturbances, but with distinct roles. Military police typically formed the first line of engagement with crowds, given that their regular duties—law enforcement, making arrests, and maintaining order on military bases—most closely resembled domestic policing. Infantry units, by contrast, were positioned as backup. After these deployments, the armed forces updated their guidelines to reflect and summarize the practices they had been implementing. That document, Operation Garden Plot, stated that troops were to use 'minimum necessary force,' be courteous, and 'avoid appearing as an invading alien force.' Military personnel were prohibited from loading or firing their weapons without the direct authorization of an officer, except in cases of self-defense where lives were in immediate danger. The Marines—who have a reputation for lethality—were deployed only twice during this period: once during the 1967 protest at the Pentagon, where they appear to have played a minor role, and again amid the violent unrest in Washington, D.C., following King's assassination. President John F. Kennedy considered sending them to help desegregate the University of Mississippi in 1962 but ultimately declined. And the Marines were held in reserve on several occasions: after MLK won his battle against Bull Connor in the 1963 Birmingham, Alabama, campaign for desegregation of downtown stores, during which firebombings of a civil-rights headquarters and King's brother's hotel room had sparked riots, and during the 1963 March on Washington. Since the end of World War II, the Marines have been deployed domestically only once—until now. That earlier instance came during the 1992 Los Angeles riots. The reasons for the rareness of Marine domestic deployments are debated, but one likely factor is that past administrations may have considered the Marines' reputed lethality ill-suited to sensitive domestic operations. Although Marine training is broadly similar to that of the Army infantry, the Corps has long cultivated a more aggressive combat identity. One of its unofficial slogans, once seen on bumper stickers and still available as a magnet, bluntly puts it: 'United States Marine Corps—when it absolutely, positively has to be destroyed overnight.' Juliette Kayyem: Trump's gross misuse of the National Guard More mundanely, the explanation may come down to logistics. The Marine Corps is a relatively small force and has rarely been stationed near sites of domestic unrest. However, Camp Pendleton—home to the largest concentration of Marines in the continental United States—sits just a few hours from Los Angeles and is far closer than the nearest viable Army unit, 45 miles south of Seattle. There may have been practical reasons to deploy the Marines. Still, the deeper question is whether this administration seriously weighed those trade-offs—or simply found it convenient that a force with such a fearsome reputation, one viewed by past administrations as a liability in domestic missions, happened to be nearby. Most important, though, is this: Since 1945, no branch of the armed forces has ever been deployed for a domestic mission without military police as the initial line of contact. In that regard, what's happening today in L.A. is truly extraordinary. The political conditions surrounding the current deployment are dramatically different from those during that prior wave. Polarization has spread from society to the political elites, who now, more than ever, seek to use the military for political gain. On the Republican side, Donald Trump appears eager to deploy the Army against left-wing protesters. He has stacked the Justice Department and the Pentagon with personal loyalists, and has tended to bypass the Office of Legal Counsel—the institution traditionally responsible for vetting the legality of executive actions. Although the standard guidelines and procedures for past domestic deployments remain on the books, there is substantial reason to doubt that the civilian leadership will follow them. Yet some institutional checks continue to function, even if unevenly. The federal judiciary has been a source of significant pushback against the administration. Already, a federal district court judge in California has ruled that Trump's deployment of the National Guard in California was illegal (though the ruling was almost immediately put on hold for further review). But the Marines remain deployed, the legal authorities and precedents granting the president power over domestic deployments are broad, and the Supreme Court tends to be highly deferential to the president in this area. Within the armed services, trained and principled leaders remain in place and prepared to navigate these challenges with discipline and integrity. However, they face an uphill battle against increasing pressure from above and must continue to respect the principle of civilian control of the military. The recent dismissal of the chairman of the Joint Chiefs of Staff and the j udge advocate generals has sent a chilling message to the military: Disagreement with the administration's edicts may come at a steep cost. In the past, military deployments have been forgotten because the wave of unrest broke gently. This time, however, the wave may crash violently, and the wreckage it leaves behind could be substantial: to the Army's legitimacy, to the health of American democracy, and to the civilian lives it may cost.
San Francisco Chronicle
13-06-2025
- San Francisco Chronicle
US appeals court refuses to vacate Biden approval of Alaska's Willow oil project
JUNEAU, Alaska (AP) — A federal appeals court panel on Friday refused to vacate the approval of the massive Willow oil project on Alaska's petroleum-rich North Slope though it found flaws in how the approval was reached. The decision from a panel of the 9th U.S. Circuit Court of Appeals comes in a long-running dispute over the project, most recently greenlit in March 2023 by then-President Joe Biden's administration and under development in the National Petroleum Reserve-Alaska by ConocoPhillips Alaska. The court's majority opinion found what it called a procedural error — but not a serious or substantive one — by the U.S. Bureau of Land Management as part of the analysis in approving Willow. The court sent the matter back to the agency for additional work. The majority determined that vacating the project's approval would be unwarranted and its consequences severe, though Judge Gabriel P. Sanchez dissented on that point. A prior version of the project approved late in President Donald Trump's first term was overturned in 2021, leading to the environmental review process completed under Biden that drew the latest legal challenges from environmentalists and a grassroots Iñupiat group. Alaska's Republican governor and its congressional delegation and state Legislature have backed Willow. The project also has broad support among Alaska Native leaders on the North Slope and groups with ties to the region who see Willow as economically vital for their communities. But critics cast the project as being at odds with Biden's pledges to combat climate change and raised concerns that it would drive further industrialization in the region. Trump expressed support for additional drilling in the reserve as part of a broader, Alaska-specific executive order he signed upon his return to office aimed at boosting oil and gas drilling, mining and logging in the state. During the cold-weather seasons, ConocoPhillips Alaska has worked to build infrastructure such as new gravel roads, bridges and pipelines at the project site, and it has laid out a timeline for producing first oil in 2029. In a statement Friday, the company said it welcomed the ruling and looked forward to 'continuing the responsible development of Willow.' J. Elizabeth Peace, a spokesperson with the U.S. Department of the Interior, said the agency doesn't comment on litigation. The Bureau of Land Management falls under Interior. The appeals panel ruling comes more than a year after it heard arguments in the case. Environmental groups and the grassroots Sovereign Iñupiat for a Living Arctic had appealed a lower-court ruling that upheld Willow's approval. Attorneys representing the groups on Friday were evaluating next steps. Arguments before the appeals court panel focused largely on claims the land management agency did not consider a 'reasonable' range of alternatives in its environmental review, as well as the groups' contention the agency had limited its consideration of alternatives to those that allowed for full-field development of the project. Attorneys for ConocoPhillips Alaska argued the leases in the company's Bear Tooth Unit in the northeast part of the petroleum reserve are in areas open to leasing and surface development — and that the agency committed the unit to development in issuing leases there over a number of years. Willow is in the unit. Friday's ruling said the agency during the environmental review process took a stance that it needed to screen out alternatives that stranded an economically viable quantity of oil but then never explained whether the pared-back plan it ultimately approved satisfied the full-field development standard. The agency 'framed its environmental review based on the full field development standard and had a rational explanation for doing so,' the ruling states. 'But that does not permit BLM to potentially deviate from the standard without explanation.' ConocoPhillips Alaska had proposed five drilling sites for Willow but the Bureau of Land Management approved three, which it said would include up to 199 total wells. Erik Grafe, an attorney with Earthjustice who represented some of the groups that challenged Willow, saw the ruling as a partial victory. 'They found a fundamental flaw that led them to conclude that the BLM acted arbitrarily in approving the Willow project and have sent that back to the agency to reconsider in a non-arbitrary way and make a new decision,' he said.
