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Lawsuit challenges Three Affiliated Tribes election procedures

Nonresidents say system disenfranchises eligible tribal members

NEW TOWN – Two members of the Three Affiliated Tribes filed a federal Voting Rights Act lawsuit against the Tribal Business Council in federal district court in Bismarck Tuesday.

Marilyn Hudson and Raymond Cross assert the council has denied them the right to vote as nonresident tribal members and diluted their right to fair and equal representation within the tribe. They say efforts to chip away at rights of nonresident members began in 1956 and was exacerbated by the council’s 1986 decision to end the right of nonresident members to vote by absentee ballot, forcing them to return to Fort Berthold Reservation to vote regardless of advanced age, extreme physical disability, military service obligations, poverty, job requirements, school attendance or elder care responsibilities.

They are asking a judge to require the council to allow all non-resident, eligible voters to vote absentee in the 2020 tribal election and to appoint a special master to oversee the mail-in balloting process. The special master also would develop a new electoral plan for the 2022 elections that would eliminate the existing geographical segments and create a single district. All eligible tribal voters would be entitled to vote for seven representatives to the council, who could not serve more than two terms, either consecutively or nonconsecutively. A new plan would need to be voted on by tribal members in a referendum election.

“We have always been entitled to vote. What has happened is the Tribal Business Council has burdened that right. You cannot burden the exercise of that right unreasonably,” said Cross, a former tribal attorney now living in Tuscon, Arizona. “You cannot allow one group to be represented but deny those same opportunities to another unless you have a compelling governmental interest.”

Cross said he has been denied an absentee ballot despite an extreme physical disability that makes it difficult and costly for him to travel to the reservation to vote.

Cross and Hudson say rights were eroded beginning in 1956 when the Department of the Interior insisted the Three Affiliated Tribes effectively “terminate” the legal and political rights of about 80% of the future tribe membership in instituting segment-based representation. About 75-80% of about 16,700 enrolled Three Affiliated Tribe members remain excluded from holding elected tribal office, nominating any candidates to the governing council or securing any representation on the governing council because they live off the reservation.

The Bismarck legal firm of Zuger Kirmis & Smith is representing the plaintiffs.

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