BISMARCK – A former tribal attorney says he will appeal a U.S. District Court judge’s decision to dismiss his complaint against the Three Affiliated Tribes Tribal Business Council that alleges violation of the federal Voting Rights Act.

Raymond Cross, a member of the Three Affiliated Tribes, said the judge’s decision Oct. 28 to dismiss the case without a hearing denied plaintiffs a chance to respond. Cross brought the case with his sister, the late Marilyn Hudson. He said the appeal also will challenge Judge Daniel Traynor’s decision that the court lacks jurisdiction over the plaintiffs’ claims.

Traynor cited a 1975 court ruling involving the Oglala Sioux Tribe of Pine Ridge Reservation, which determined the quasi-sovereign status of the Indian tribes gives them the ability to determine the extent to which the right to vote is to be exercised in tribal elections, absent explicit Congressional legislation to the contrary.

“He simply just laid out a broad brushstroke saying, ‘I’m not going to intervene because I deem this an intra-tribal matter,’ and that’s just not good enough under the law,” Cross said. “Nowadays, everyone agrees that Indians as citizens of the United States are entitled to some measure of protection, just like all other citizens have equal protection/due process.”

Hudson and Cross asserted the council denied them the right to vote as nonresident tribal members and diluted their right to fair and equal representation within the tribe. Their complaint states efforts to chip away at rights of nonresident members began in 1956 when the Department of the Interior insisted the Three Affiliated Tribes effectively “terminate” the legal and political rights of nonresident tribal members 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 complaint states the situation 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.

Cross, of Tucson, Arizona, 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.

He said internal remedies were sought before filing in federal court. The MHA Nation Supreme Court issued a nonbinding opinion that due process and equal protection violations existed.

The lawsuit seeks appointment of a special master who 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.

Cross said a notice of appeal will be filed in the Eighth Circuit Court of Appeal before the Nov. 28 deadline.

“I just don’t think this is the right decision for North Dakota,” Cross said. “Judge Traynor’s decision basically shuts Indian plaintiffs who assert civil rights cases out from their own court systems and also from the federal district court, and that’s just plain wrong.”