[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
NATIVE AMERICAN VOTING RIGHTS: EXPLORING BARRIERS AND SOLUTIONS
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HEARING
BEFORE THE
SUBCOMMITTEE ON ELECTIONS
OF THE
COMMITTEE ON HOUSE
ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 11, 2020
__________
Printed for the use of the Committee on House Administration
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available on the Internet:
http://www.govinfo.gov/committee/house-administration
_________
U.S. GOVERNMENT PUBLISHING OFFICE
41-319 WASHINGTON : 2020
Committee on House Administration
ZOE LOFGREN, California, Chairperson
JAMIE RASKIN, Maryland RODNEY DAVIS, Illinois,
SUSAN A. DAVIS, California Ranking Member
G. K. BUTTERFIELD, North Carolina MARK WALKER, North Carolina
MARCIA L. FUDGE, Ohio BARRY LOUDERMILK, Georgia
PETE AGUILAR, California
C O N T E N T S
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FEBRUARY 11, 2020
Page
Native American Voting Rights: Exploring Barriers and Solutions.. 1
OPENING STATEMENTS
Chairwoman Marcia L. Fudge....................................... 1
Prepared statement of Chairwoman Fudge....................... 4
Hon. Rodney Davis, Ranking Member................................ 7
Prepared statement of Ranking Member Davis................... 8
WITNESSES
Hon. Ben Ray Lujan, Representative, Third District of New Mexico. 10
Prepared statement of Hon. Lujan............................. 13
Mr. Leonard Forsman, Chairman, Suquamish Tribe................... 16
Prepared statement of Chairman Forsman....................... 19
Ms. Amber Torres, Chairperson, Walker River Paiute Tribe......... 22
Prepared statement of Ms. Torres............................. 24
Ms. Doreen McPaul, Attorney General, Navajo Nation............... 26
Prepared statement of Ms. McPaul............................. 28
Ms. Patricia Ferguson-Bohnee, Director, Indian Legal Clinic,
Sandra Day O'Connor College of Law............................. 54
Prepared statement of Ms. Ferguson-Bohnee.................... 57
Mr. Elvis Norquay, Member, Turtle Mountain Band of Chippewa
Indians........................................................ 70
Prepared statement of Mr. Norquay............................ 71
Jacqueline De Leon, Staff Attorney, Native American Rights Fund.. 72
Prepared statement of Ms. De Leon............................ 74
QUESTIONS FOR THE RECORD
Ms. Patricia Ferguson-Bohnee, Director, Indian Legal Clinic,
Sandra Day O'Connor College of Law, answers to submitted
questions...................................................... 97
Jacqueline De Leon, Staff Attorney, Native American Rights Fund,
answers to submitted questions................................. 112
Ms. Doreen McPaul, Attorney General, Navajo Nation, answers to
submitted questions............................................ 120
Mr. Leonard Forsman, Chairman, Suquamish Tribe, answers to
submitted questions............................................ 124
Ms. Amber Torres, Chairperson, Walker River Paiute Tribe, answers
to submitted questions......................................... 127
SUBMISSIONS FOR THE RECORD
Statement of the National Congress of American Indians, The
Native American Rights Fund.................................... 130
Letter, American Bar Association................................. 137
Report, The Comprehensive Field Hearing Report on Historical and
Contemporary Barriers to Political Participation by Native
American Voters................................................ 139
NATIVE AMERICAN VOTING RIGHTS: EXPLORING BARRIERS AND SOLUTIONS
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TUESDAY, FEBRUARY 11, 2020
House of Representatives,
Subcommittee on Elections,
Committee on House Administration,
Washington, DC.
The Subcommittee met, pursuant to call, at 9:59 a.m., in
Room 1310, Longworth House Office Building, Hon. Marcia L.
Fudge [chair of the Subcommittee] presiding.
Present: Representatives Fudge, Butterfield, Aguilar, and
Davis of Illinois.
Staff Present: Sean Jones, Legislative Clerk; Jamie Fleet,
Staff Director; David Tucker, Senior Counsel and
Parliamentarian; Mariam Malik, Staff Assistant; Sarah Nasta,
Elections Counsel; Giancarlo Pellegrini, Professional Staff
Member; Hannah Carr, Staff Assistant; Veleter Mazyck, Chief of
Staff for Chairperson Fudge; Kyle Parker, Legislative Director
for Representative Butterfield; Evan Dorner, Legislative
Assistant for Representative Aguilar; Nick Crocker, Minority
Director, Member Services; and Jesse Roberts, Minority Counsel.
Chairperson Fudge. Good morning. The Subcommittee on
Elections of the Committee on House Administration will come to
order.
I ask unanimous consent that all Members have five
legislative days in which to revise and extend their remarks
and that any written statements be made part of record.
Hearing no objection, so ordered.
I would like to thank the Members of the Committee as well
as our witnesses and those in the audience for being here
today.
We are here today to examine barriers to Native American
voting rights. This morning's hearing will shed light on the
longstanding disenfranchisement faced by this Nation's first
people and potential solutions to right this wrong.
The ongoing injustice of voter disenfranchisement in
America is far too familiar. Throughout 2019, the Subcommittee
on Elections held a series of field hearings across the country
to examine the state of voting rights and election
administration in America. What we found was an alarming array
of hurdles and obstacles to voting that exists for citizens
across the country, especially minority groups.
Suppressive tactics have existed in various forms since
this Nation's founding, and they continue today. In 2013, the
Supreme Court's decision in Shelby County gave jurisdictions
with a provable legacy of discrimination, a green light to
discriminate at will.
What was old is new again: polling place closures and
movements, cutbacks and restrictions on early voting,
discriminatory voter ID laws, removing otherwise eligible
voters from the rolls, modern day poll taxes, and a failure to
provide required language assistance and materials among other
barriers all combine to continually disfranchise millions of
otherwise eligible voters.
Last year, the House passed bills to strengthen voter
protections and ballot access, including H.R. 1 and H.R. 4.
Both these bills now sit on the Senate Majority Leader's desk
waiting for action, but we cannot be still.
At our founding, America claimed the commitment to
equality. This Nation has failed to live up to that claim at
many turns, and it is time to fix it.
Protecting the rights of Native American voters is no
exception. This is now the second Subcommittee hearing focused
exclusively on Native American voting rights and our third
examining the issue in detail. One might ask why we are
spending so much time on this topic. Almost 7 million people
identify as American Indian or Alaskan Native, millions of whom
are eligible voters, including tens of thousands serving on
active military duty and thousands more veterans who bravely
serve this country.
Apart from the Subcommittee's North Dakota field hearing,
neither this Committee nor, in fact, any other committee in
either Chamber of Congress has held a single hearing dedicated
to Native American voting rights in recent memory. It is not
only appropriate but necessary to hold a few hearings and make
up for lost time.
The Federal Government has consistently failed Native
American communities by engaging in policies of forced removal
and assimilation, failing to live up to its treaty promises and
trust obligations and denying Native American citizenship until
1924. The States are far from blameless. Once Native Americans
acquired citizenship and the legal right to vote, States
immediately erected a series of Jim Crow style barriers to
prevent Native Americans from casting a ballot.
By the time this discrimination began to fade in the 1960s,
the damage was done. Native Americans experienced
disproportionately low rates of voter participation and steep
socioeconomic challenges. Both of these problems persist today.
The socioeconomic challenges experienced by many Native
Americans are severe and unacceptable. More than a quarter of
Native Americans live in poverty, and Native Americans are
unemployed at almost twice the rate of other Americans. Tribal
lands are often rural and isolated, and many members lack
access to transportation, residential street addresses, and
reliable mail service. All of this was underscored by witnesses
at our field hearings in North Dakota and Arizona, but it is
not limited to those two States.
These structural challenges mean that today's election laws
are not necessarily working for Native American voters. Voter
registration services are often scarce or unavailable on Tribal
land, and the act of voting itself is difficult for many Tribal
members. Polling sites are plagued by inadequate facilities,
outdated equipment, and long wait lines. Tribal lands sometimes
lack a polling site altogether, and access to proper language
assistance remains a persistent issue.
As we constantly talk about greatness, America is great
because of her ability to repair her faults. It is time for us
to do right by the residents of Tribal nations and guarantee
the right to vote that each member is owed. We look forward to
our panels today offering their views and possible solutions,
hopefully. There is much work to be done.
I yield now to the Ranking Member, Mr. Davis.
[The statement of Chairperson Fudge follows:]
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Mr. Davis of Illinois. Thank you, Madam Chair.
Welcome to my good friend and colleague, Mr. Lujan. Can't
wait to grill you with questions, my friend.
Since the creation of the Committee on House
Administration, oversight of Federal elections quickly became
one of its chief tasks. Throughout CHA's existence, the
Committee has worked across the aisle to create significant and
necessary election policy that is widely impacted this Nation,
including legislation to eliminate the poll tax, legislation to
create easier access to members of the military and their
families when voting overseas, and the landmark Help America
Vote Act, a piece of legislation that took significant steps to
remedy the problems seen in the 2000 presidential election.
The Subcommittee on Elections is designed to serve as an
extension of CHA to enhance oversight capabilities of Federal
elections. While the Subcommittee has not always been a formal
part of this Committee, the work on the election administration
has always remained a top priority. Since the Subcommittee's
recent reinstatement, its focus has been on examining the
Voting Rights Act, which historically has been a bipartisan
effort, first enacted in 1965 for the purpose of removing
racial-based restrictions on voting. While this legislation has
primarily remained under the jurisdiction of the House
Judiciary Committee, our Committee has an obligation to review
how elections are being administered and recognize problems
that Congress can solve, which I hope we are able to do here.
The bill we are reviewing today, the Native American Voting
Rights Bill, is specifically to address how Native Americans
vote in our Nation's elections, and I hope to hear more about
that today, especially starting with my friend and colleague,
Mr. Lujan. We previously held a field hearing in North Dakota
on Standing Rock where we heard from many Tribal leaders about
their work to help their populations vote, and we discussed
ways that they can work with State administrators to better
increase those efforts.
We also held a field hearing in Phoenix, Arizona, where the
Subcommittee had the opportunity to again hear from Native
American representatives on voting rights. In Arizona, we heard
from State Senator Ugenta Rita on the State's ballot harvesting
prohibition, which has recently been, in my view, wrongly
invalidated by Ninth Circuit Court of Appeals. I hope we can
hear testimony on the very important issue of ballot harvesting
as well.
If there is evidence of intentional widespread voter
discrimination, we should take steps to remedy that in a
bipartisan manner. Additionally, we should do our due diligence
to review all of the facts and the numbers carefully and hear
from all of the relevant stakeholders. What are the voter
registration trends? What are the voter turnout trends? It is
essential that Congress make the most well-informed decisions
possible.
Voting is a fundamental right to American citizens, and
protecting that right is a responsibility that I as Ranking
Member of this Subcommittee and of the full Committee take very
seriously.
Today I am here to listen to all the witnesses who have
graciously agreed to participate. I look forward to hearing
what each of you have to share in front of the Subcommittee.
Thank you, Madam Chair, and I yield back.
[The statement of Mr. Davis of Illinois follows:]
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Chairperson Fudge. Thank you, Mr. Davis.
Mr. Lujan, I will spare you all of the instructions about
the lighting system. I am sure you are quite aware.
So, on our first panel, we will hear from a sponsor of H.R.
1694, the Native American Voting Rights Act, my colleague and
friend, Congressman Ben Ray Lujan. Congressman Lujan represents
New Mexico's Third Congressional District and is serving his
sixth term in Congress. He serves as the Assistant Speaker of
the House and is the highest-ranking Hispanic in Congress. He
is also a member of the Congressional Native American Caucus
and the Congressional Hispanic Caucus.
Congressman Lujan's district includes 15 Pueblos and Navajo
Nation and the Jicarilla----
Mr. Lujan. Jicarilla.
Chairperson Fudge [continuing]. Apache Nation, and
Congressman Lujan was born and raised in Nambe a small
community in northern New Mexico, nestled between two Pueblos
and the historic high road to Taos scenic byway.
You are recognized, my friend, for five minutes.
STATEMENT OF THE HON. BEN RAY LUJAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW MEXICO
Mr. Lujan. Thank you, Madam Chair.
And thank you to Chairperson Lofgren, and Ranking Member
Davis, Chairperson Fudge, members of the Subcommittee and their
efforts to uplift Native American voting rights. I am glad to
see the Honorable Doreen McPaul representing the Navajo Nation
and Isleta Pueblo Tribal member Jacqueline De Leon here to lend
their voices to this critical discussion. I welcome them as
well.
I am proud of what we have accomplished in the 116th
Congress to build on the Voting Rights Act with House passage
of H.R. 4, but our work is not finished. As a Nation, we have
still not fulfilled commitments to Tribes to work with them on
a government-to-government basis to protect Native voting
rights. This is a great injustice and one that allows the
longstanding disenfranchisement of Native voters to continue.
Throughout our country's history, Native voters have been
subject to guardianship, literacy tests, polling taxes, and
outright rejection from the ballot box in regions across the
U.S. These barriers still exist. My home State of New Mexico is
figured prominently in this history.
More than 50 years after the ratification of the 14th
Amendment and 24 years after Native Americans were finally
granted their innate right to citizenship and the vote, veteran
Miguel Trujillo of Isleta Pueblo was denied his right to
participate in our democracy by his county registrar. Their
reason? Mr. Trujillo lived on Tribal land and was classified by
the government as ``Indians not taxed.'' Mr. Trujillo filed
suit and won in 1948. The landmark case, Trujillo v. Garley,
granted Native Americans the right to vote regardless of
whether they lived on Tribal lands or not.
That same year, Frank Harrison of the Yavapai Nation
challenged Arizona in Harrison v. Laveen for the State's claim
that Indians were ``mentally incompetent,'' in the words of the
government, and therefore prohibited from voting. Mr. Harrison
won, again, confirming States cannot infringe on Native
people's right to vote.
And yet today States continue to restrict Native voting
rights. They print ballots near Native communities in English
only, close or move polling places off Tribal lands, and
require physical addresses on IDs from voters whose homes do
not have physical addresses but rather rural box addresses,
which are commonplace in many rural communities across America.
I thank the House Judiciary Committee for ensuring Native
voices are a part of the efforts to strengthen the Voting
Rights Act. Committee action proved that Native peoples,
particularly those living on Tribal lands, continue to face
linguistic, geographic, and legal barriers to voting. We know
North Dakota Tribes are fighting State voter ID laws that
Tribal members are unable to comply with because, as I stated
earlier, they lack physical addresses where they live and rely
on rural box addresses. Growing up, through my own childhood,
it was Route 1, Box 102. The same mailbox that was Route 1, Box
102 that went to our house is the same mailbox at the top of
that dirt road. Now it is just named after my grandparents with
a physical address. But the local government went in to change
those addresses. There are still many parts of America where
rural communities are still operating under that addressing
system that I grew up with.
Just last week, South Dakota legislators rejected a bill
that would have allowed Tribal IDs to be used for voter
registration. In 2020, this type of disenfranchisement is
unacceptable. It is a stain on our Federal trust responsibility
and our democracy.
The good news is that Tribes and lawmakers are taking
action. Less than a year ago, Washington State and Colorado
passed laws that allow Tribes to designate addresses for
individuals who do not have physical addresses for voting
purposes.
Congress has a unique responsibility to legislate here
because of the government-to-government relationship the United
States has with Tribal Nations. That is why I introduced the
Native American Voting Rights Act with Senator Tom Udall, our
colleagues Deb Haaland and Sharice Davis and Ranking Member Tom
Cole.
The Native American Voting Rights Act allows Tribal
governments to collaborate with their State counterparts to
ensure Native peoples have access to the ballot box. It directs
States to accept Tribal IDs for voter registration or
identification purposes, requires precincts to honor requests
to place polling locations on Tribal lands, and ensure
precincts seek Tribal consent before changing polling
locations.
In places that require Native language assistance under the
Voting Rights Act, it allows Tribes to determine the forms of
assistance. Tribal governments are empowered to request Federal
observers when they believe Native voters might be
disenfranchised at the polls. It would also create a grant
program to build a stronger election infrastructure for
communities.
Madam Chair, I would ask unanimous consent to enter into
the record the many organizations that are supportive of this
legislation. I urge my colleagues to support the Native
American Voting Rights Act. And I thank the Committee and
witnesses for being part of today's vital hearing. Thank you.
[The statement of Mr. Lujan follows:]
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Chairperson Fudge. Thank you very much.
I appreciate it. We are not going to ask our colleague any
questions, so we thank you so much for being here, and we would
call our second panel.
Thank you so much. Our witnesses today will be recognized
for five minutes. I will remind our witnesses that their entire
written statements will be made part of the record and that the
record will remain open for at least five days for additional
materials to be submitted if you wish.
The lighting system will tell you how much time you have
remaining. You will each have five minutes. Green light means
begin. Yellow means you have one minute left. And red means
please wrap up your statement.
On our second panel, I would like to welcome Leonard
Forsman, Chairman of the Suquamish Tribe. He has held the
position since 2005. Previously, he was a research
archaeologist for Larson Anthropological and Archaeological--
those are two words hard to say together--Services in Seattle,
Washington, from 1992 through 2003. He is also the vice chair
of the Advisory Council of Historic Preservation, a position he
was appointed to by President Obama.
Amber Torres has served as Chairman of the Walker River
Paiute Tribe in Schurz, Nevada, since 2016. She currently
serves on the Intertribal Council of Nevada Executive Board
Native Farm Bill Coalition and Tribal Leaders Consultation Work
Group, the National Indian Health Board, the National Congress
of American Indians, Vice President, Alternate Western Region,
Tribal Interior Budget Council, and other boards that represent
Nevada, Arizona, and Utah.
Welcome.
Doreen McPaul assumed her position as Attorney General of
the Navajo Nation in April 2019. She has 18 years of legal
experience, including 11 years working for the Pascua Yaqui
Tribe and Tohono O'odham Tribe--I am close; I am trying really
hard--Nation and the Salt River Pima-Maricopa Indian community.
She received her law degree from Arizona State University and
is licensed to practice law in Arizona and New Mexico and on
the Navajo Nation.
Thank you all so much for being here. We will begin. You
have five minutes.
STATEMENTS OF LEONARD FORSMAN, CHAIRMAN, SUQUAMISH TRIBE,
SUQUAMISH, WASHINGTON; AMBER TORRES, CHAIRPERSON, WALKER RIVER
PAIUTE TRIBE; AND DOREEN MCPAUL, ATTORNEY GENERAL, NAVAJO
NATION
STATEMENT OF LEONARD FORSMAN
Mr. Forsman. Good morning, Chairperson Fudge, Ranking
Member Davis, and all the Members of the Subcommittee. My name
is Leonard Forsman. I am the chairman of the Suquamish Tribe,
and I also serve as President of Affiliated Tribes of Northwest
Indians. I thank you for the opportunity to testify today about
removing legal barriers that prevent Native Americans from
exercising our right to vote, and specifically how we
accomplished this in the State of Washington.
The Suquamish Tribe is signatory to the 1855 Treaty of
Point Elliott. In exchange for ceding most of our aboriginal
homeland, the Tribe reserved the Port Madison Indian
Reservation, home of Chief Seattle, on the Kitsap Peninsula as
well fishing, hunting, and gathering rights. We have roughly
1,200 enrolled citizens, more than half of whom reside on a
reservation or within Kitsap County, which is located west of
Seattle across the Puget Sound.
As residents of the State of Washington, we have many
options on how to register to vote. We can register by mail or
online eight days prior to election day. We also have the
ability to register in person and on election day itself.
Washington is a vote-by-mail state. Prior to election day,
ballots are mailed to all registered voters. Voters may return
their ballots via mail or by dropping the ballot off at a
designated ballot box location. Postage is not required to mail
the ballot. Voters also have the option to vote in person on
election day.
Even with the seemingly voter-friendly Washington system,
American Indians still face many obstacles to exercising our
right to vote. The obstacles I will discuss are not particular
to Suquamish or Washington State. They are common across Indian
Country.
The first barrier was using Tribal IDs to register to vote.
Tribal citizens that did not have State-issued licenses or IDs
have a harder time registering to vote online. Many Tribal
citizens' primary identification is their Tribal ID cards.
These individuals often do not have State-issued driver's
license or ID cards. In addition, some Tribal-issued IDs do not
include residential addresses or signatures.
The second barrier was that many Tribal citizens do not
have a typical residential address to use to register to vote.
Many Suquamish homes have addresses that do not correlate with
the State's address system. This creates issues for these
Tribal citizens in ensuring that they are registered to vote in
the right precinct. In addition, Tribal citizens rely heavily
on PO boxes, which are strictly prohibited in establishing
residence for voter registration.
A third barrier specific to Washington was the option for
returning ballots. Too often designated ballot box locations
were off reservation and operated with limited hours. This
created a hardship for many Tribal citizens that do not have
the means of transportation. Tribal citizens were also deterred
by having to pay the postage of the ballot. That is no longer
the case.
Washington State responded to these challenges by enacting
the Native American Voting Rights Act, or NAVRA. NAVRA
addresses many of the issues we face when trying to vote.
First, a Tribe may now request that their county auditor
establish at least one ballot box on their reservation. More
importantly, the Tribe can choose a location. There is no cost
to the Tribe. We have one right outside our Tribal office,
fortunately.
NAVRA allows Tribal citizens residing on a reservation to
use nontraditional residential addresses for voter
registration. They may also use a location of the tribally
designated ballot box as a residential and mailing address if
they live in the same precinct.
Third, NAVRA allows Tribal citizens to use Tribal IDs to
register to vote. The Tribal ID does not need to list the
residential address. However, if the ID does not have the
Tribal citizen's signature, the secretary of state must be able
to obtain a copy of the signature from the Tribe.
Finally, a Tribe may request that any State facility
located on the Tribe's reservation provide voter registration
services. NAVRA also provides enforcement mechanisms that allow
a Tribal government, an individual, or a State attorney general
to sue to enforce its provisions.
Since the passage of NAVRA, Tribes in Washington are now
partnered with the State. The Suquamish Tribe is now able to
have direct involvement with the State in planning and ensuring
that our people do not face obstacles while exercising their
right to vote.
The Tribe is now preparing for this year's 2020 elections.
We have a ballot box located in front of our Tribal offices,
and we have a central location to deliver the ballots, our
ballots. This is important for homeless citizens and for those
that may not have a stable residence. These individuals now
have the ability to designate the Tribal ballot box location as
their address. The Suquamish have been working with the State
to provide voter registration services on our reservation.
In addition to my role as chairman of the Tribe, I am also
on the NCAI Executive Board, and NCAI has established a
nonpartisan Native voting initiative that provides staff
coordinators to offer vital information throughout Indian
Country. NCAI has provided testimony to the work that they do
on the Get Out the Vote.
And, in conclusion, I urge this Committee to consider the
measures taken by the State of Washington as Congress moves
forward in addressing voter rights issues. Thank you for the
opportunity to testify. I am happy to answer any questions.
Thank you.
[The statement of Mr. Forsman follows:]
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Chairperson Fudge. Thank you, Mr. Chairman.
I now recognize Chairwoman Torres for five minutes.
STATEMENT OF AMBER TORRES
Ms. Torres. Pesha Awamooa'a me Amber Torres me nane'a nu
Agai Dicutta Poinabe nu Agai Gway. Good morning, everyone. My
name is Amber Torres.
I am the Chairman for the Walker River Paiute Tribe in
Schurz, Nevada. I want to thank Chairperson Marcia L. Fudge and
Ranking Member Rodney Davis and members of the Committee on
House Administration, Subcommittee on Elections, for the
opportunity to testify about Native American voting rights,
exploring barriers and solutions.
In 2016, the Walker River and Pyramid Lake Paiute Tribes
worked in conjunction with Four Directions Incorporated to
determine if Tribal members living on reservations had equal
access to the ballot box. It was determined that the poverty
rate, lack of transportation, and/or the age and condition of
the vehicles placed Tribal members at a disadvantage in
participating in early in-person voting.
On or about September 7, 2016, a complaint and an emergency
motion for a preliminary injunction was filed in Federal court
that the alleged abridgement of the fundamental right, the
right to vote and, in particular, to have equal access to early
in-person voting and election day in-person polling, protected
under Section 2 of the Voting Rights Act, Sanchez v. Barbara
Cegavske.
A hearing on this matter was held, and the Honorable Judge
Du and the stance taken by the Tribal members was supported by
a preliminary expert report from Professor Daniel Craig McCool
of the University of Utah and a Statement of Interest filed by
the Department of Justice.
On or about October 7, 2020, the Honorable Judge Du issued
an order that plaintiffs' Motion for Preliminary Injunction,
ECF No. 26, is granted in part and denied in part. The motion
is granted with respect to plaintiffs' request for early in-
person voting in Nixon, Nevada, and Schurz, Nevada. The motion
is also granted with respect to plaintiffs' request for
election day in-person voting in Nixon, Nevada. The motion is
denied with respect to plaintiffs' request for in-person voter
registration in Nixon, Nevada, and Schurz, Nevada.
Since that time, the Nevada State legislators created
legislation that allows counties to work with other Nevada
Tribes to establish satellite offices. We have also seen an
increase of Tribal members voter turnout. Because of the
absolute offices, there are new registered voters.
One issue that still creates problems to this day is the
felony provision in the State of Nevada voter registration
application. Line 15 on the form states: Important, if you are
assisting a person to register to vote and you are not a field
register appointment by a county clerk, register of voters, or
an employee of a voter registration agency, you must complete
the following. Your signature is required. Failure to do so is
a felony.
This creates problems within our reservation in that our
youth tend to help their grandparents in everyday activities,
and this provision makes them hesitant and/or not wanting to
assist the elders in voter registration in that if they forget
to sign, they could be charged with a felony. It would only
take Nevada legislation to remove this barrier, but until that
time, the field register appointed by a county clerk register
of voters or an employee of a voter registration agency should
be assigned to our reservations to assist with voter
registration.
We would also like the House and Senate to support H.R.
1694, Native American Voting Rights Act of 2019. Our people
understand the importance of voting and how hard our ancestors
fought to have that right. Please make sure our voices are
heard now and for future generations.
Thank you for your time for allowing me to testify before
this Committee on the issues of voter equality at the ballot
box. Pesha U. Thank you.
[The statement of Ms. Torres follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairperson Fudge. Thank you.
Attorney General McPaul, you are recognized for five
minutes.
STATEMENT OF DOREEN MCPAUL
Ms. McPaul. Good morning. Thank you, Madam Chair, and
honorable Members of the Subcommittee. I appreciate the
opportunity to address the Subcommittee today.
My name is Doreen McPaul. I am an enrolled member of the
Navajo Nation, and I serve as the Attorney General, and I
oversee the Nation's Department of Justice.
I am here today to discuss three recent voting rights cases
that greatly impact Navajo voters. Each of these decisions
highlights adversities faced by Navajos when they are casting
their ballots.
The first case is Navajo Nation v. San Juan County. San
Juan County is in Utah. It is the largest county in the United
States that has a majority Native American population. This
case challenged the county's failure to redistrict its
commission and school board for more than 20 years. The county
is made up of three commission districts, two of which have a
majority non-Native population, and the third had a 92 percent
Navajo population in 2012 when this litigation was brought. As
a result of this case, the Federal court found the county's
district lines to be unconstitutional in violation of the Equal
Protection Clause. The court appointed a special master to
draft a redistricting plan. Under the new plan, two of the
three county districts had, for the first time, a Native
American majority population. The court ordered the county to
adopt the plan and to hold a special election using the new
redistricting plan. This election occurred in November of 2018,
and as a result of the election, two Navajos for the first time
in the county's history were elected to hold two of the three
commissioner seats.
And despite the success, there is ongoing efforts to
challenge the structure of this county and to undo these
positive results.
The second case is Navajo Nation v. Hobbs. This is a
Federal court case that challenged the early voting practices
of three Arizona counties: Apache County, Navajo County, and
Coconino County.
In 2018, these counties did not count the early ballots
submitted by Navajo voters that failed to have a signature nor
did the counties inform the voter that the ballot was
defective.
The Nation filed a suit against the Arizona Secretary of
State as well as the three counties. This particular case
recently settled in a way which allows the voter who failed to
sign their ballot two things. First, they have notice of the
deficiency, and they also have the opportunity to cure that
defect. These two remedies are also already afforded to voters
who have mismatched signatures on their early voting ballots as
well as to voters on election day who failed to present their
identification.
We are having some post-settlement challenges with the
State's election manual as well as some current legislation
proposed by one Senator that would specifically prohibit curing
and undo our settlement in this case.
The last case I want to mention is the very recent
Democratic National Committee v. Hobbs. In this particular
decision, the Ninth Circuit overturned two laws that had
significant hardship--created significant hardship for voters.
The first law prohibited ballot collecting by third parties,
and the second law prohibited out-of-precinct ballots.
It is very common for Navajos who share the burden of
having a distant post office box to have relatives pick up or
drop off the mail. This is true whether they share a box or
they share a residence. And out-of-precinct voting is also very
common on the Navajo Nation, especially where Tribal and State
elections are happening on the same day. If a voter's precinct
doesn't align with the Navajo Nation's 110 political
subdivisions, it results in out-of-precinct voting, and so we
are very pleased with this Ninth Circuit decision.
And just to conclude my comments, I want to emphasize that
the Navajo Nation supports the efforts of Congress to address
Native voting issues in the Native American Voting Rights Act.
Litigation is expensive. It is time consuming, and there is
really no end in sight. Both the Navajo Nation President as
well as the Navajo Council have expressed support for the act.
And for the Nation, this law recognizes the unique challenges
faced by Native voters and attempts to remedy those issues, and
the Nation would very much like Congress to pass that act.
Thank you.
[The statement of McPaul follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairperson Fudge. Thank you very much, and thank you all
for your testimony. I congratulate you for the legal successes
that you all have experienced and just note that it took more
than 230 years to get two Native Americans elected to the House
of Representatives.
Let me begin with this question for all of you, each of
you, and we will just go down the line. Do you think that your
surrounding non-Tribal communities face the same challenges
with geography in voting?
Mr. Forsman. We have got 29 Tribes in Washington. It varies
from the rural to the urban to the suburban. So I would guess
it depend on the Tribe you are asking about. I would say
generally that they don't face the same challenges that our
people do within our reservations because of the past
oppression that our people faced through the assimilation
process the Federal Government imposed upon us.
And so most things that you mentioned earlier in your
testimony about Indians not taxed and the tradition of our
people not being allowed to go to public schools and then being
sent to boarding schools, so this tradition of being excluded
is something that--there is some distrust, but there are some
challenges also around access.
Washington, of course, is a model for some of those things
being eliminated, but I would just like to emphasize that not
all States are like Washington in their relationship with
Tribes in that we have a very positive relationship that took a
lot of work. It didn't just come out of thin air, but it took a
lot of work by my previous leadership that did a lot of those
things. And so a lot of the political forces within Washington
really respect the unique relationship that Tribes have with
the Federal Government and the States.
Chairperson Fudge. Is Washington the only State that has a
Native American Voting Rights Act?
Mr. Forsman. As far as I know, but I may be--I had heard
earlier that Colorado has something similar, but I am only
familiar with Washington's.
Chairperson Fudge. Thank you.
Ms. Torres.
Ms. Torres. Thank you for the question. I want to say,
frankly, that I don't believe that non-Indians have the same
barriers to access as Native Americans do. As you know,
reservations are located in rural and desolate areas where I
would say that non-Indians have access because they are in
urban settings.
Again, we deal with the barriers to access, transportation
issues, high poverty rates, unemployment rates. And the biggest
thing is, you know, if my people have to decide whether they
are going to use that transportation to go to work versus, you
know, going to vote 40 miles away, you know, it is a no-
brainer.
We have historical trauma embedded within our people, and
the biggest thing is we face challenges that no one else does.
And, again, I feel it is a trust and treaty responsibility
because our ancestors paid it due a long time ago, and it is
time for the Federal Government to hold up their end of the
bargain. Thank you for that question.
Chairperson Fudge. Thank you.
Attorney General, can you just tell me what you think is
the greatest hardship faced by Native Americans as it relates
to voting? I mean, we have gone through the IDs and how costly
they have been, how time consuming. What do you think is the
biggest issue, and what should we be doing as a Nation to live
up to our end of this bargain?
Ms. McPaul. I don't know if there is one single greatest
challenge. I can tell you that I think for the Navajo Nation in
particular because we cover such a large area of land, cover
multiple States, cover multiple counties within those States,
there is just a lot of challenges, you know. I moved back to
Wind Rock from Tucson, Arizona, and for the first time in 20
years, I have a post office box. I have access to a vehicle. I
have access to paved roads, and I only check my mail probably
once every week or maybe two weeks. It is just an inconvenience
to travel to the post office. And adding things like lack of
transportation, having to traverse dirt roads, having to
traverse those roads in bad weather, and then not having
financial means to do just basic--you know, getting to the post
office or getting to the polling location just are challenges
upon challenges. So I don't know if there is a single fix, you
know.
In my role having to bring constant litigation and the
expense of litigation is a challenge to our budget, and you
know, prioritizing this for our communities is--you know, I
have to choose between, you know, a case like this or an Indian
Child Welfare Act case or some other important case, you know,
that goes to the root of Tribal sovereignty. And so, you know,
I think that improving access, improving language, all of those
things that help, you know, take down the barriers are of great
need.
Chairperson Fudge. Thank you.
Mr. Davis, you are recognized for five minutes.
Mr. Davis of Illinois. Thank you, Madam Chair.
Real quickly, I want to get from each of you, if we could--
and we will start with Chairman Forsman--can you all speak a
little bit about voter registration trends for each of your
Tribes and overall voter participation in the last few election
cycles?
Mr. Forsman. I don't have specific statistics to reference,
but I know that, in Washington, the NAVRA, Voting Rights Act
for Native Americans, and just the general trend within
Washington to make voting easier through mail, through more
less-stringent requirements for ID, for registration because
you can actually use a Social Security number if you don't have
a State-issued ID and the other alternatives for that. Just for
example, my brother just moved back from being in San Francisco
for 40 years, back to the reservation. And he only had a
California ID and doesn't drive. So he had no need to get a
State license. He was able to register fairly easily just
through the mail.
The barriers have been dropping in Washington because there
is a real conscious effort there to reduce the barriers to
voting so that Washingtonians and their Tribal citizens can
have that opportunity to vote. I feel that those efforts have
increased our registration and our voter turnout.
Mr. Davis of Illinois. Great.
Ms. Torres. Chairwoman Torres.
Ms. Torres. Thank you. Thank you for the question. So, with
our litigation, we have had an early polling site on our
reservation, which has offered us a number of new registered
voters and also access for our people to be local there at home
and make their vote count.
The other thing is we are getting our veterans out. We are
getting our community members out. We are having voter drives
where we are bringing in our people. We are hiring our own
people, which I think is a huge success for us because of
cultural competencies. People feel as if those people are
trusted, and so I think it has been good for us.
I think one of the huge successes that we have had is with
the early voting sites. We are getting our own people trained,
and it allows more of our people to again feel comfortable
coming in and giving their vote there.
The other thing is, this year, we are really concentrating
on Census as well as voting, and we have new 18-year-olds. We
are pushing that think get signed up, and, again, our older
voters that haven't voting in quite some time, we are going out
and educating them on that importance. We are really making the
push to sign all of our people up. So it has been successful,
and we have seen a huge voter turnout.
Mr. Davis of Illinois. All right.
Ms. McPaul, what are your thoughts?
Ms. McPaul. Thank you. With respect to voter registration
trends, I can only speak to this in terms of our litigation
with, for example, redistricting and a constitutional matter
that affects voting turnout. And the results allowing for
ballot collecting and out-of-precinct voting, you know, should
be a trend if that is the way I can say that.
With respect to our Arizona settlement, adding additional
in-person voting places as part of the settlement, developing a
voter registration plan for the State to maximize voter
registration as part of the settlement, adding timely radio
advertisements. Election information in the Navajo language is
important, providing Navajo translators at each polling place
and also allowing voters an opportunity to cure their unsigned
ballots.
Mr. Davis of Illinois. Okay. Thank you all for your
thoughts on this.
Real quick, while I have a little bit of time left,
Attorney General McPaul, I noticed in your testimony you
mentioned the case that was discussed at the Arizona field
hearing in regard to ballot harvesting in the Ninth Circuit
Court of Appeals. On ballot harvesting, more generally,
California, States like California, I have a concern with the
chain of custody issues that I believe are ripe for fraud. As a
matter of fact, we saw fraud in ballot harvesting in North
Carolina where we had a special election. And one Member who
won an election in November of 2018 was not seated in this
institution because of ballot harvesting.
So, with the Ninth Circuit Court of Appeals ruling, do you
think the gentleman who is probably going to be on--who is
going to be on trial and likely to go to jail in North Carolina
because ballot harvesting is illegal, do you think that gives
him the ability to argue that his case should be thrown out of
court?
Ms. McPaul. Thank you for the question. I am not familiar
with the particular issue that you are talking about, so I
don't feel competent to speak to it. I can tell you that, in my
personal experience just growing up on the reservation and
sharing a post office box, you know, my relatives all live in
the same area, and it is not uncommon for everybody to have
keys to the other people's post office boxes to collect the
mail and to drop it off. And so, you know, I don't--I don't
know. In that context, delivering the mail for my grandmother
or my disabled relative, how that would constitute fraud for
picking up the mail?
Mr. Davis of Illinois. Well, it is pretty well established
now in most States that you can take the relatives' ballot, but
we saw an instance of fraud in North Carolina where a
Republican operative is likely to go to jail for doing what is
completely legal in other States that the Ninth Circuit Court
of Appeals addressed in their decision. I just find it
interesting. I mean, I think if I was the one who was being
charged, I would seriously look at that decision. So thank you
all for your comments.
Chairperson Fudge. Mr. Butterfield, you are recognized for
five minutes.
Mr. Butterfield. Thank you very much, Madam Chair.
Let me join the Chair and Ranking Member in welcoming the
three of you to this hearing today. Your testimony has been
very valuable.
Many of my colleagues know that in my prior life, I was a
trial judge in North Carolina, but many of my colleagues may
not know that prior to that, I was a voting rights attorney for
some six or seven years in my State. When I came out of law
school, I did not recognize the full potential and power of the
1965 Voting Rights Act. But after I began to learn and to apply
the Voting Rights Act, I began to appreciate the importance of
the VRA. And so that is why I am an original cosponsor of H.R.
1694 that was offered by my good friend, Ben Ray Lujan. I
support it and will work very hard for its passage.
One thing that I learned during my voting rights years is
that the Voting Rights Act is a statutory enactment whose basis
is deeply rooted in the 15th Amendment, and I just happen to
have a copy of the Constitution in my pocket today. I don't
usually walk around with it, but for some reason, I picked it
up this morning. And, last week, we observed the 150th
anniversary of the ratification of the 15th Amendment. That is
a very significant date in African American history and,
indeed, in American history.
So I just want to read into the record--all of us have
heard this over and over again, but I just want to do it for
emphasis. Section 1 of the 15th Amendment. The right of
citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of
race, color, or previous condition of servitude.
Here is the key part that a lot of people don't really pay
attention to: The Congress--the Congress--shall have power to
enforce this article by appropriate legislation.
And that is what you are talking about, and that is what we
are talking about, and that is why it is essential that we get
H.R. 1694 enacted into law.
Chairperson Torres, your opening statement mentioned a 2016
case in which your Tribe successfully forced election
authorities to include polling places on your land. How far
would you say your members had to travel to vote before you
brought that case? I think it may have come out earlier, but I
need to get it into the record clearly. How far would your
members have to drive?
Ms. Torres. For the record, as far as Walker River Paiute
Tribe, we have always had a polling site on our reservation.
What we were battling for was access for early voting site, as
well as traveling the distance for Pyramid Lake Paiute Tribe
would be at least 40 minutes one way. Again, that would be from
Pyramid Lake on their reservation up to the Reno, Sparks, or
Washoe area. So, again, 40 miles one way.
Mr. Butterfield. Do you think the 2016 legislation changed
the way the election officials engaged with your community? I
know in the South after the passage of the 1965 Voting Rights
Act, African American communities all of a sudden became
important. But pre-Voting Rights Act, the African American
communities were marginalized. Have you seen a difference?
Ms. Torres. I can guarantee that we have seen a difference,
again, just standing our ground and knowing what our rights
were and fighting for them. Again, with our ancestors fighting
so hard for our right to vote, we had to make sure to set that
precedence. And, again, we have opened up the doors for all of
Nevada Tribes now to have those satellite clinics or--I am
sorry--those satellite options, offices, and then also so that
they would have the ability to have polling sites on their
reservation and early polling sites and then also have the
ability to get their own people trained to work in those
facilities. I think that is a huge success in Indian Country
and Nevada specifically.
Mr. Butterfield. Thank you.
Let me now direct my final question to the Attorney
General. Thank you for your service. How far do your members
typically have to travel to apply for a driver's license or
other government service? Does that affect your members'
ability to obtain the IDs or other documents that they need to
register and vote?
Ms. McPaul. Thank you for the question. It is not uncommon
in our rural communities for folks to travel half an hour to an
hour or more to get to the nearest city. That city might not
have a place, a motor vehicle division to get a driver's
license. So it kind of varies. I can tell you in San Juan
County, folks in Navajo Mountain who travel to Blanding, which
is where the county seat is, is four hours.
Chairperson Fudge. How many?
Ms. McPaul. Four.
Mr. Butterfield. All right. I think I will stop right
there, Madam Chair. Thank you. I yield back.
Chairperson Fudge. Thank you.
Mr. Aguilar, you are recognized for five minutes.
Mr. Aguilar. Thank you, Madam Chair. Thank you for the
opportunity to have the panel, and thank you for our witnesses
today.
Attorney General McPaul, as you know, Arizona recently
moved to a vote center voting model. This means that voters no
longer have a specific polling place in many locations but can
vote anywhere they would like. While this model seems to offer
more options for voters, it only works if there are an adequate
number of polling places to choose from. Has the vote center
model affected voters' access to the polls and their ability to
vote in Indian Country?
Ms. McPaul. I am sorry. I don't know that I can speak
intelligently to that question. I do know that Professor Patty
Ferguson is on the next panel, and she would have the
information to adequately address your question. I apologize.
Mr. Aguilar. Can you talk to me a little bit about some of
the barriers, then, to voting within the Navajo Nation that
your community still faces? What are some of the largest
barriers that exist?
Ms. McPaul. Thank you. Yeah, I can do that. You know, one
of the things I mentioned is that, you know, my office
represents all three branches of government, all of these
executive branch divisions and programs, and we also represent
the 110 local governing chapters. So the Nation is divided up
into those 110 local community chapters where people vote,
where people have community gatherings, and it is where local
governance occurs.
Those boundaries are, you know, traditional boundaries.
They predate statehood. They predate county lines. And so there
are often issues with the way the polling precincts don't match
with where people actually vote. And so it is entirely possible
for people to have to go to two different places to vote on
election day, and that creates confusion.
I think that the language barrier issue is also a prominent
issue that was highlighted in one of the litigations where the
instructions for signatures on the envelopes were not made
available.
The other issue, as I think I mentioned before, is just
having a rural community, no access to passable roads,
particularly when there is bad weather and just the means to be
able to do that and the convenience of having--you know,
getting your mail at home and to return your early ballot by
mail.
Mr. Aguilar. Thank you.
Attorney General McPaul, just following up on the Ranking
Member's question, you understand filling out someone else's
ballot is fraud. It is fraud in Navajo Nation. I believe it is
fraud in every State, correct?
Ms. McPaul. I believe so, yes.
Mr. Aguilar. Is there a difference between filling out a
ballot wrongfully for someone else and holding a ballot and
physically just taking it for someone, a friend, a neighbor, a
loved one? There would be a difference in those, right?
Ms. McPaul. Yes.
Mr. Aguilar. Yes.
Chairman Forsman, in your testimony you talked--and
specifically the relationship you have in Washington is a
little different than our Washington, I suppose, among your
policymakers. Can you talk to me a little bit about kind of, I
guess, the atmospherics that exist between Indian Country and
local elected officials and State elected officials and the
lines of communication that are open so you can freely talk
about the barriers that exist and how you seek to remedy those?
Mr. Forsman. Yeah. Well, one of the things that--I think
that Tribal-State relations came to pretty much a bottom in the
early 1970s over the fishing wars and the Boldt decision, which
acknowledged the Tribes' treaty rights to half the harvestable
salmon in Washington and also as co-managers, as governments,
to help co-manage the fishing harvests and seasons. It was very
empowering, and it took a little while for us all to get used
to--I think for the State to get used to having the treaty
rights and also the government-to-government relationship
visible and implemented with the help of the United States
Department of Justice and Congress itself and over time and the
Supreme Court, of course.
So, over that time and during--in 1989, it was the 100th
birthday of the State of Washington in 1989, the centennial.
And the Centennial Accords were established--kind of the
Governor's office with the help of Congressman Denny Heck, who
was working for the State at the time, established this
protocol for us to meet annually and work on our respective
issues.
And through that, we worked with the legislature, and also
getting Native Americans elected to our legislature has been
helpful as well. We have taken a more--the State has embraced
our Tribal-State relationship and tried to be respectful of
each other. And part of that is, you know, working on natural
resource issues, health, education, all these things because I
think many of the legislators and leaders of the State see the
Tribe as an asset to their community.
So, over time, that has, of course, made us responsive to
current events, and one of those being some of the voter
suppression we saw happening in other States. This legislation
was in response to that to make sure that, although we do
have--and things aren't perfect in Washington, but they are
much better than many other States, but there are other States
that also have good relationships and set good examples as
well. There are others where there are challenges. Anyway, just
to wrap up. I just think it is important to remember that we
have worked really hard on that and look forward to more
opportunities.
Mr. Aguilar. Thank you. Thank you, Mr. Chairman. The State
of Washington benefited from Mr. Heck's service for a number of
years, and we all have here as well. Thank you so much.
Chairperson Fudge. Thank you. Thank you all for your
testimony today. We appreciate it. We will be sure to be in
contact as we go further with this legislation. Thank you
again. I would now ask for the third panel to please join us.
Thank you and welcome. As I explained to the previous
panel, you will have five minutes to give your testimony. When
the green light comes on, that means begin. When you see a
yellow light, that means that you have one minute. And when you
see a red light, that means please try to wrap up your
testimony. Let me now introduce our panel.
Patty Ferguson-Bohnee is the director of the Indian Legal
Clinic, faculty director of the Indian Legal Program and
clinical professor of law at the Sandra Day O'Connor College of
Law at Arizona State University. She has assisted in complex
voting rights litigation on behalf of Tribes and has drafted
amicus briefs to the United States Supreme Court for Tribal
clients with respect to voting rights issues. She serves as a
Native Vote Election Protection Coordinator for the State of
Arizona and has testified before Congress regarding Indian
voting issues. Professor Ferguson-Bohnee received her
bachelor's degree with honors in Native American studies with
an emphasis in policy and law from the Stanford University and
her Juris Doctorate from Columbia University School of Law with
a certificate in foreign and comparative law.
Thank you and welcome.
Mr. Norquay is a member of the Turtle Mountain Band of
Chippewa Indians in North Dakota, and he was denied the right
to vote in 2014 due to his lack of an ID showing a residential
address. Mr. Norquay was an individual plaintiff in the North
Dakota voter ID litigation, and he is a veteran of the United
States Marine Corps.
Thank you, sir, and thank you for your service.
Jacqueline De Leon is an attorney with the Native American
Rights Fund, also known as NARF, and she is an enrolled member
of the Isleta Pueblo. As an attorney at NARF, she helps lead
field hearings across Indian Country on Native American voting
rights, and she practices ongoing voter rights litigation.
Prior to her work at NARF, Ms. De Leon was a senior associate
at WilmerHale for 4 years focusing on international antitrust
and litigation. She holds a J.D. from Stanford and a B.A. from
Princeton University in philosophy. Ms. De Leon clerked for
Judge William H. Walls of the United States District Court for
the District of New Jersey and Chief Justice Dana Fabe of the
Alaska Supreme Court.
Welcome all.
We will begin with you, and we will give you each five
minutes. Remember, when the light comes on, begin. When you see
yellow, you know you have one minute, and when you see red,
please wrap up.
Ms. Ferguson-Bohnee, you are now recognized for five
minutes.
STATEMENTS OF PATRICIA FERGUSON-BOHNEE, DIRECTOR, INDIAN LEGAL
CLINIC, SANDRA DAY O'CONNOR COLLEGE OF LAW, PHOENIX, ARIZONA;
ELVIS NORQUAY, MEMBER, TURTLE MOUNTAIN RESERVATION, ROLLA,
NORTH DAKOTA; AND JACQUELINE DE LEON, STAFF ATTORNEY, NATIVE
AMERICAN RIGHTS FUND, BOULDER, COLORADO
STATEMENT OF PATRICIA FERGUSON-BOHNEE
Ms. Ferguson-Bohnee. Thank you very much.
Chairperson Fudge, Ranking Member Davis, and Members of the
Committee, thank you for inviting me to testify today. In my
work, I have viewed firsthand the threats to Native American
voting rights and the need for vigilant protection of the right
to vote.
Congress has the duty to fulfill its unique trust
obligation to Native Americans, including in matters of voting.
The trust responsibility is a well-established legal obligation
that originates from the historical relationship between the
U.S. and Indian Tribes as set forth in Article I, section 8, of
the U.S. Constitution. Under the trust responsibility, the U.S.
must ensure the protection of Tribal and individual Indian
lands, assets, resources, and treaty and similarly recognized
rights.
While States have a duty to provide equal protection and
ensure that Tribal citizens have equal access to voting, in
many cases, they fail to do so. The Supreme Court has
recognized that the States are the deadliest enemies of Tribes
and that Congress has the responsibility to legislate with
respect to Tribes when State governments cannot be trusted to
do so.
So let's just look at a little bit of history. When
Congress passed the Indian Citizenship Act in 1924, States
prevented Indians from registering to vote and from voting.
Representative Lujan testified about ongoing barriers whenever
Native people received that right to vote when they became
citizens, but they were denied that right.
And while the Voting Rights Act improved voting for
Indians, Native Americans continue to face obstacles. In recent
years, States and counties have taken actions to reduce Native
American voter participation by failing to comply with section
203 language requirements, packing Indians into districts to
reduce voting strength, closing polling locations, and passing
strict voter ID laws.
Further, many of the voting barriers faced by Tribal people
result from systemic issues that Congress has failed to
address. These include disproportionately poor levels of
health, education, and employment. On many reservations,
Indians lack access to basic services and modern-day
conveniences. On-reservation voters have different experiences,
opportunities, and realities than off-reservation voters.
Isolating conditions, such as language, socioeconomic
disparities, lack of transportation, lack of residential
addresses, lack of access to mail, the digital divide, and
distance are a few of the factors that impede Native American
political participation. Today, States and counties either fail
to consider these realities or intentionally exploit them in
ways that give rise to modern forms of voter suppression we see
in Indian Country.
Many of the methods to overcome these barriers are outside
of the control of the individual Tribal voter. Let's take, for
example, the issue of nontraditional addresses and lack of home
mail delivery. Approximately 80 percent of the U.S. population
lives in urban areas while many Native Americans and Alaskan
Natives live in rural communities. These rural Indian
communities lack residential street addresses, and locations
for homes are usually described by landmarks, crossroads, and
directions. It is important to recognize that, for reservation
residents, at-home mail delivery is uncommon, residential
addresses may not exist, and residents primarily rely on shared
P.O. boxes for mail delivery. Unlike most post office
locations, those located on reservations lack 24/7 access and
have restricted hours. Distances can be great with some
reservation residents traveling up to 70 miles in one direction
to receive mail.
Across Indian Country, Native Americans have difficulty
voting because of these residential addresses. It impacts all
aspects of voting including getting mail, registering to vote,
and complying with voter ID requirements. We have seen this in
South Dakota, North Dakota, Washington, California, and
Arizona.
Now, the lack of safe and reliable mail delivery was a
factor in the Ninth's Circuit recent decision overturning
Arizona's ballot collection law. Ballot collection is a method
of increasing turnout utilized largely by Hispanic and Native
American communities. In Arizona, only 18 percent of Natives
receive mail at home. This, coupled with lack of
transportation, makes it difficult for Indians to vote by mail.
In overturning the law, the Ninth Circuit found that
Arizona acted with racially discriminatory intent in violation
of section 2 of the Voting Rights Act and the 15th Amendment
when passing the ballot collection law. It is also important to
note that Arizona tried to implement a ban on ballot collection
in 2011 but withdrew it during the preclearance process.
This example illustrates the need for ongoing measures to
protect Native American voters. U.S. Supreme Court Justice Hugo
Black said great Nations, like great men, should keep their
word. It has been 96 years since the Indian Citizenship Act,
and the promise of the Native American franchise has yet to be
kept. However, Congress has the power and the duty to keep that
promise. Thank you for allowing me to testify today.
[The statement of Ms. Ferguson-Bohnee follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairperson Fudge. Thank you very much.
Mr. Norquay, you are recognized for five minutes, and
again, I thank you for your service.
STATEMENT OF ELVIS NORQUAY
Mr. Norquay. Thank you, ma'am.
My name is Elvis A. Norquay, and I am from the Turtle
Mountain band of Chippewa Indians. I am a veteran of the United
States Marine Corps. I am a citizen of the United States. I
have lived on and around the Turtle Mountain Reservation over
the past 30 years.
In November 2014, I went to the KC hall to vote but was
turned away. I have voted many times for years before being
turned away. I was always happy to go vote. Being turned away
knocked me down. It turned out North Dakota started requiring
ID and addresses to vote. I didn't have an ID with an address
on it. We are homegrown people. We don't need the residential
ID. We know where everybody lives. Sometimes the homes on the
reservation don't have addresses, and sometimes people don't
have homes. I have been a homeless veteran. So sometimes I
don't have an address. I don't have a car. I can't afford to
get an ID. I still think I deserve to vote. Voting means to
make our country better and see who can run it better. Thank
you.
[The statement of Mr. Norquay follows:]
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Chairperson Fudge. Thank you. And yes, you do deserve to
vote.
Ms. De Leon, you are recognized for five minutes.
STATEMENT OF JACQUELINE DE LEON
Ms. De Leon. Thank you, Chairman Lofgren and Ranking Member
Davis, Chairperson Fudge, and Members of the Subcommittee for
having me here today.
Thank you, Congressman Lujan and Senator Udall, for
introducing the Native American Voting Rights Act.
I am here to testify in support of this important bill. My
name is Jacqueline De Leon. I am a member of the Isleta Pueblo
and a staff attorney for the Native American Rights Fund, the
Nation's oldest and largest nonprofit law firm dedicated to
advancing the rights of Native Americans.
In 2015, NARF began the Native American Voting Rights
Coalition focused on increasing Native American access to the
political process. Over two years, the NAVRC completed a series
of nine field hearings on the state of voting rights in Indian
Country. I, along with NARF's pro bono counsel, Dr. James
Tucker, had the honor of attending all of these hearings; 125
witnesses shared their experiences of voting. I am carrying
their stories with me here today.
Unfortunately, I come with dire news. Native Americans are
facing an onslaught of unjust barriers that keep them from
voting. Today I am going to focus on conditions that would be
improved by NAVRA: the unreasonable distance many Tribal
members must travel to register and cast their votes,
identification requirements, and the importance of flexible
language provisions.
Finally, I will provide the Committee with a few instances
of overt racism which highlight the need for Federal reform.
Native Americans have to travel, frankly, absurd distances
to register. Voters from Nevada Tribes identified travel
distance as the single biggest obstacle to registering. The
closest elections office to the Duckwater Reservation is 140
miles each way. Pyramid Lake faces a 100-mile round trip, and
the Walker River Reservation faces 70 miles.
NAVRA's extension of NVRA requirements to Federal programs
servicing Native people increases registration opportunities if
States are required to give registrations with SNAP
applications. The Department of Agriculture should likewise be
required to give out and collect registration forms for their
commodity program.
Additionally, polling places are usually located in Non-
Native communities. In Bighorn County, Montana, Native voters
must travel twice as far to reach their polling elections as
non-Natives. This is but one example of many. Long distances
are costly because they take time to travel, require missed
work, childcare, a vehicle, and gas money. What is more, this
travel is on dirt roads which may be impassable in the winter
month of November.
But even more damaging is the message that remote polling
places convey to voting Tribal members. These distances
communicate: Your vote doesn't matter. The system is not for
you.
Mandating polling places on Tribal lands, as NAVRA does,
will dramatically decrease travel time for thousands of Native
Americans across the country, and this is much-needed reform.
Next, it is unreasonably difficult for many Native
Americans to get State IDs. State-run DMVs are far. For
example, in Keshena, Wisconsin, Tribal members must travel over
an hour to get to the nearest DMV that is regularly open.
Additionally, for impoverished Native Americans, even nominal
fees can present a barrier, yet Tribal IDs are not
automatically accepted. Just last week, South Dakota's House
rejected allowing Tribal IDs to register to vote. NAVRA's
provision mandating acceptance of Tribal IDs allows Tribes to
provide IDs to their own members so they can vote.
Section 203 of the Voting Rights Act removes language
barriers by requiring covered jurisdictions to provide language
assistance. NAVRA would provide necessary relief by extending
section 203 to Native voters whose languages are traditionally
unwritten.
Finally, discrimination is not just a relic of the past or
the effect of past wrongs. Native Americans continue to
experience discrimination when they attempt to vote. In
Arizona, racial tensions are so high between the Kaibab Band of
Paiute Indians and the border town next to the reservation that
border town residents regularly block the flow of water into
the reservation. And for years, Tribal members were forced to
vote in that same border town.
In South Dakota, voters were forced to vote in a repurposed
chicken coop.
In Montana, the number of registration cards accepted by
county officials from Native community organizations was
arbitrarily limited to 70, creating an unnecessary barrier to
registration.
In South Dakota, the Buffalo County seat located in Gann
Valley has full early voting access. Gann Valley only has a
population of 12 people. And yet 25 miles away on the Crow
Creek Reservation, Fort Thompson's 1,200 residents had no early
voting. Despite calls from activists to provide a polling
location in Fort Thompson and despite HAVA funding being
available, the county auditor refused and instead decided to
forego the usage of the funds altogether. It is these local
discriminatory actions that call out for Federal relief and
oversight.
In sum, as one Tribal member explained, yes, I would like
you, person at the poll, to respect me as a Native American,
respect my culture. But if you can't do that, treat me as a
human being and respect my elders and respect my children.
Likewise, we ask for no more and no less than equal opportunity
for all Native Americans to vote. Thank you for having me here
today, and I am happy to answer any questions.
[The statement of Ms. De Leon follows:]
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Chairperson Fudge. Thank you very, very much.
Mr. Aguilar, you are recognized for five minutes.
Mr. Aguilar. Thank you, Madam Chair.
Mr. Norquay, thank you for sharing your story with us. In
your testimony, you bring up that you believe you still have a
right to vote. I share that belief. I hope everyone on this
dais shares that belief. It must be difficult and confusing to
comply with North Dakota's voter ID laws. From what I
understand, voter ID laws in North Dakota have changed three
times in the past five years. As Federal legislators, we want
to make sure we develop and pass policies that make it easier
for people to vote. It is disheartening to hear that you were
turned away and not allowed to vote.
So my question is, what do you think can be done to ensure
that you and friends aren't unfairly turned away from the
voting polls? What more can we do to be helpful?
Mr. Norquay. Okay. The people of Turtle Mountain, they got
free IDs, and a lot of those people, they don't know what that
means because they--how do you say that? They don't know what
it means.
Mr. Aguilar. Yes.
Mr. Norquay. And a lot of them are older. Older. They don't
have--they can't go far and stuff like that. I think just make
it better for the people and transportation and, you know,
closer voting. Closer voting because we have to go miles to
vote around. Like I said, we know everybody around there, and
some of us don't have vehicles, you know. And it costs us $20
to catch a ride to the voting booth, and, you know, that is $20
out of your pocket so you can't buy an ID card. What the Tribe
did, they gave free IDs for a little while. Now we have to pay
$15 for it. I don't think that is right for the people.
Mr. Aguilar. Thank you for sharing your story.
Ms. Ferguson-Bohnee, good to see you again. You joined us
in Arizona, I believe, as well. Can you talk a little bit
about--I asked the previous panel about voting centers. Can you
talk a little bit about how that is being implemented in
Arizona, what barriers still exist with the voting center
concept, and what more we could do to ensure that more
individuals have access?
Ms. Ferguson-Bohnee. Sure. So, right now, the counties
decide whether or not to implement voting centers. And if you
have a vote center, then anyone within that county has an
opportunity to vote at that vote center by ballot on demand.
However, in places with large numbers of Native Americans,
there are not vote centers, and you have to vote at your
precinct. And if you don't vote at your precinct, then your
ballot is not counted. And that was part of decision that the
Ninth Circuit ruled I think on January 23rd, that out-of-
precinct voting disproportionately impacted Native American
voters, and so since they would discard the whole ballot, that
now counties will have to count those parts of the ballot that
are statewide or Federal, so they do not discard the whole
ballot. But there was a finding by the court that it
disproportionately affects Native American voters.
Mr. Aguilar. Great. I appreciate it. I am sure the Ranking
Member is going to talk a little bit about that Ninth Circuit
decision in his line of questioning.
I did want to ask you, Ms. Ferguson-Bohnee. Have Arizona
policymakers acted differently since preclearance is no longer
required? What changes have you seen from a policymaking
perspective since preclearance is no longer required?
Ms. Ferguson-Bohnee. There has definitely been a
difference. The first election after preclearance was no longer
the case of--that a lot of polling locations were closed. There
was a lawsuit, and the county at the time, Maricopa County,
said they did not consider the impact on minority communities.
So, before, when a law was changed or a policy was made, there
would have to be an assessment on, would this disparately
impact Native American communities or Hispanics or African
Americans? And they have not been doing that. They have
actually been introducing laws such as the ballot collection
law.
They have also introduced a law which requires individuals
to show ID when you vote early in person. Well, who is going to
be more likely to do that? That is going to be Native American
voters because they don't have access to the mail. While other
voters who vote early, most of the voters in the State of
Arizona, the non-Native voters vote by mail, and their
identification is verified through their signature.
And then we have a number of new laws that are introduced
this session, and I think Attorney General McPaul stated that
there is an effort to undermine the settlement that the Navajo
Nation reached on ballot curing.
Mr. Aguilar. Thank you. I appreciate it.
Thank you, Madam Chair. I yield back.
Chairperson Fudge. Thank you.
Mr. Davis, you are recognized for five minutes.
Mr. Davis of Illinois. Thank you, Madam Chair.
Mr. Norquay, thank you for your service to the United
States Marines. I am sorry to hear what happened in 2014. Were
you able to vote in 2016?
Mr. Norquay. Yes. I got a new ID, a residential ID.
Mr. Davis of Illinois. And 2018?
Mr. Norquay. Yes.
Mr. Davis of Illinois. Okay. Thank you again for your
testimony today here and for being here today too.
Ms. Ferguson-Bohnee, are you familiar with a gentleman who
teaches at Arizona State University's law school, Chad Noreuil?
Ms. Ferguson-Bohnee. Yes, I am.
Mr. Davis of Illinois. What can you tell this Committee
about Mr. Noreuil? Is he active in any of these issues that you
are testifying on today?
Ms. Ferguson-Bohnee. Not to my knowledge.
Mr. Davis of Illinois. Is he actually competent in anything
that he does?
Ms. Ferguson-Bohnee. Yes.
Mr. Davis of Illinois. Oh, good. He told me to tell you to
stop by his office a little more. Chad was the best man in my
wedding. I have known him for 40 years. Sorry I didn't get a
chance to talk to you beforehand. I wanted to make sure that I
made you feel a little uncomfortable here as a witness by
talking about him, but----
Ms. Ferguson-Bohnee. Thank you. He is a nice guy.
Mr. Davis of Illinois. He said hello.
I welcome your testimony today. Some of the issues,
especially the responses to Mr. Aguilar's questions I thought
were very interesting, and we look forward to working with you
on many of these issues.
But, again, make sure you stop by his office and say hello
a little more, all right?
Ms. Ferguson-Bohnee. Thank you.
Mr. Davis of Illinois. Ms. De Leon, great to see you again.
I enjoyed your testimony in North Dakota.
Ms. De Leon. Thank you.
Mr. Davis of Illinois. In North Dakota, you said that
Native American voter turnout for the 2018 midterm elections
set an all-time high for a midterm election in North Dakota.
That is great news, and as I said there, it should be
celebrated. You know, be it your grassroots involvement of
effort and especially getting the youth involved from Turtle
Mountain Reservation who led the march to the polls, those are
techniques that I think should be utilized everywhere. What can
be done to continue this type of engagement?
Ms. De Leon. Yes. So thank you so much for the question.
North Dakota is a perfect example of the type of litigation
that is now necessary to be brought. It is incredibly costly.
NARF brought a case over the course of almost four years and
nearly a million dollars spent to articulate the injustice that
was going on there, that the State of North Dakota was
requiring an address on an ID in order to vote when the North
Dakota Tribal members did not have addresses.
In response, the people were outraged and took that
outrage, and they organized, and like you said, the highest
turnout in record, which we are thrilled about.
But outrage will fade, but the law is going to remain. And
so, in time, the barrier is going to remain erected, and people
are still going to continue to have a problem voting, which is
why, in North Dakota, like elsewhere, there shouldn't have to
be that expenditure in order to get a just result--you know, of
litigation in order to get a just result. I think, instead,
Federal action like you can perform here would prevent the need
for that type of litigation in the first place. And places like
Washington State and, Nevada, where they brought a successful
lawsuit, can then see that increase in voter registration and
turnout.
Mr. Davis of Illinois. What is the process for one to
register to vote in North Dakota?
Ms. De Leon. There is no registration in North Dakota.
Mr. Davis of Illinois. So you have zero voter registration?
Ms. De Leon. That is right.
Mr. Davis of Illinois. If you prove you live in the State,
you can go vote that day?
Ms. De Leon. Well, I don't think you have to prove that you
live in a State. What you have to do is be a United States
citizen and be a resident of North Dakota, and those are the
qualifications to vote.
Mr. Davis of Illinois. Would you encourage a voter
registration process like in my home State of Illinois or
possibly Arizona or Ohio or California?
Ms. De Leon. Registration is the province of the States,
and I respect their authority on that.
Mr. Davis of Illinois. Okay. You don't have a preference.
Ms. De Leon. I really don't have a preference as long as
there is equal access for every individual.
Mr. Davis of Illinois. Okay. Do you foresee any issues
where nongovernmental entities like NARF who apply and are
granted funds to administer election functions on reservations
instead of the Tribes--I mean, you mentioned funding was a big
problem. Do you see--you know, my question is, you know--I
would assume the Tribes would benefit from election security
dollars and election administration dollars more so than the
independent groups. What do you see?
Ms. De Leon. I am not sure what you are referring to. I
know that----
Mr. Davis of Illinois. Federal dollars are going to flow to
increase the amount of turnout among Native Americans. Do you
think the money should be sent directly to the Tribes, or do
you think it should go to outside entities like NARF, for
example?
Ms. De Leon. It depends on what function is being
performed. I think that NARF serves a critical function like
you have seen, in North Dakota to highlight injustices across
the country and to bring attention to places, and solutions, to
places where people are denied the access to vote. But, of
course, funding should also be provided directly to Tribes and
State and county governments so that they can fulfill their
polling location obligations.
Mr. Davis of Illinois. Thank you.
Ms. De Leon. Thank you.
Chairperson Fudge. Thank you, Mr. Davis.
Let me just ask both of the attorneys. Section 2 we know is
a very time-consuming and expensive way to litigate the voting
rights issue. Why do you think we are forced to do that? Help
me understand why you feel that--as my colleagues would try to
say, you know, ``Voting was up, so what is your problem, you
know, all good.'' Tell me why that is not true.
Ms. Ferguson-Bohnee. Well, I think one reason which has
been highlighted through the work of the Native American Voting
Rights Coalition is that there hasn't been a lot of attention
paid to the issues faced by Native American voters, and the
U.S. Department of Justice since 2000 has only brought one case
on behalf of Native American voters, and that is a 2010 case.
And Native Americans are dispersed across the country. So there
hasn't been a lot of commitment to work with Native people. I
think that is why Congress should use their function to
investigate this issue and assist Tribes in the efforts to
ensure that Native Americans are active participants in
democracy.
Ms. De Leon. Thank you so much for the question. I think
that section 2 provides an opportunity for relief in areas that
don't necessarily receive a lot of attention, and it can bring
to light injustices that are taking place. But like you said,
it is incredibly costly. You know, not just proving intentional
discrimination, but just proving discrimination itself costs a
lot of money. So, for example, in North Dakota, we had to show
that it was especially difficult for Native Americans to
receive IDs. We had to employ an expert that had to map the
average distance for a Native American versus a non-Native
American to reach a driver's license site, for example, and in
that case, there was a huge disparity. But that type of
evidence and building that kind of evidence, it requires a lot
of upfront cost. And so, you know, we have been able to
identify some specific barriers, and we think that, with some
congressional action, we can forego having to litigate over and
over again.
Chairperson Fudge. And still with you, Ms. De Leon. How did
it make you feel to know that the authorities had the resources
to put a polling place, to create a Tribal voting polling
place, and refused to do it? How did that make you feel?
Ms. De Leon. So, over the course of these field hearings, I
had the honor of listening to testimony, heartbreaking
testimony across the country of people and the injustices that
they were facing, the lack of respect given to them, and hear
how heartbroken they were when they tried to vote and it was
just too hard or too far or they were stopped. And, you know,
in the case of Buffalo County, I mean, it made me, frankly,
infuriated. I think that it is wrong that, if there is funding
available, that you are choosing to forego increasing the right
or the opportunity for individuals to vote.
I will say that, through the activism of individuals in
South Dakota, that county auditor was removed from office and
was replaced by a Native American county auditor, which was a
great success story. I will also say that I have talked to that
county auditor, and she is facing severe discrimination right
now by her coworkers and by the State government.
Chairperson Fudge. Thank you.
Mr. Norquay, let me apologize on behalf of this Nation for
your treatment, especially as one who has served this country.
I apologize to you.
Now, let me just ask quickly. What is something that you
think we can do right away to make the situation, especially on
Tribal lands, better for this election this year? We will start
with Ms. Ferguson-Bohnee, and we will just go right down the
line.
Ms. Ferguson-Bohnee. I definitely think there needs to be
more access to funding so that Tribes can have access to voter
registration, polling locations, and language translations. We
saw in the Navajo Nation litigation that one big obstacle faced
by the Tribe where the county is saying that they don't have
the resources to meet their obligations under Federal law. Do
they have the resources? I don't know, but that is an excuse
that has been used to not provide equal access to Navajo voters
in Arizona and other voters in Arizona.
And I just want to mention that some voters in Arizona have
to travel five hours, 280 miles, to participate in in-person
early voting, and that should not be the case. If in-person
early voting is offered, everyone should have access to in-
person early voting.
Chairperson Fudge. Thank you.
Mr. Norquay.
Mr. Norquay. I think they should have, like, the State and
the Tribal government both together--they are separated you
know, like, one side, this side, that side, you know. And the
people don't get to intertwine, you know, speak about their
representatives. And, you know, they go their own way, and they
don't go to the other side because, you know, they got
different opinions about it. And like you said, the polling
places, they have got to come together.
Chairperson Fudge. Thank you.
Ms. De Leon. So, first, I know it would be wonderful if you
passed NAVRA and provide a polling place on every Tribal
reservation. But absent that, I think that it would be helpful
to issue Federal guidance to indicate that polling places are
even allowed on reservations. I know that a lot of times, local
county officials just may be unaware of that fact that polling
places are allowed and it is encouraged. And, you know, the
Federal Government can encourage or can bring litigation under
section 2 as well. And given the well-documented discrimination
facing Native Americans, we encourage them to do so.
Chairperson Fudge. Thank you. And I thank you all so very
much.
And in conclusion, I would just like to make a short
statement for the record. Being an African American, I clearly
understand discrimination. I know it when I see it, and I have
seen it throughout this process as we have traveled this
country. But those who have not faced discrimination tend to
find ways to explain it away. They always want to make it that,
you know, ``Well, you overcame, so it is okay.'' It is not
okay.
So I would say to you that it is going to continue to be
difficult, but it is our responsibility as people who represent
the Federal Government to protect protected classes of people,
and we are going to do our very best to make it better. I don't
know where we go from here, but I do know this: We are going to
continue to expose the problem. We are going to continue to try
to address the problem, and we thank you for every day for
trying to make it better on your own.
And, with that, if there is nothing further, I would thank
you again, and, without objection, this Subcommittee stands
adjourned.
[Whereupon, at 11:28 a.m., the Subcommittee was adjourned.]
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