US Disproportionately Convicts Native People of Felonies, Harming Voting Rights

Washington — Imagine walking in to cast a ballot for the very first time, already unsure if the process will go smoothly. And then a poll worker makes a sly comment about a past criminal conviction.

“He felt embarrassed and shamed, walked out the door and never voted,” Stephanie Thompson, Lac du Flambeau Band of Chippewa, told the Native American Rights Fund during a field hearing on issues impacting Native voters in 2017.

This is the reality for many people who, despite being eligible to register to vote or cast their ballot, are often denied their voting rights or shamed.

The Native vote is critical for many state and federal elections, including in Arizona, Alaska, Montana, Wisconsin, North Dakota, New Mexico and Nevada — just to name a few. The influence of the Native vote has been strategically diluted through gerrymandering, voter laws and few polling locations on sovereign lands.

It also gets impacted by felony disenfranchisement, meaning laws that keep people who have been convicted of felonies from voting. These laws also keep people who are currently incarcerated, formerly incarcerated, or on probation and parole from voting.

As of July 2024, only two states and the nation’s capital — Maine, Vermont and District of Columbia — don’t have any felony disenfranchisement laws. However, 10 states bar all or some people of crimes from voting: Virginia, Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Tennessee and Wyoming. Nationally, that’s 4.4 million people who are ineligible to vote due to felony disenfranchisement laws. That’s 2 percent of the voting age population. In tight elections, that percentage could mean the difference between which candidates win or lose.

Let’s look at a couple of states with Native peoples and nations.

Virginia’s state constitution doesn’t allow anyone with a past felony conviction to vote, according to a report by the Brennan Center for Justice. The state has seven federally recognized tribes and two reservations. Arizona, where the largest land-based tribe in the nation crosses and is home to 22 federally recognized tribes, doesn’t allow anyone with two or more felony convictions to vote. The state is one of the big swing states in every election cycle and candidates often focus their efforts on the Native vote there.

While there is national data for felony disenfranchisement, there is no national data about the impact of felony disenfranchisement on Indigenous people, despite American Indian and Alaska Native people being disproportionately represented in the criminal justice system. This makes it challenging to know the actual impact of felony disenfranchisement, which is the oldest form of voter disenfranchisement, on the Native vote.

The Sentencing Project, which is one of the leading research organizations that looks at the impact of this issue every two years, has not been able to calculate national data.

“There’s an ongoing problem in terms of data,” said Nicole Porter, a senior director at the Sentencing Project. “The way state correctional systems, and the federal systems count people, there’s been a lack of consistency around that across the years, which makes these estimates very challenging.”

In the project’s next report set to release this year, there will be some state-by-state data on Indigenous people and felony disenfranchisement.

This voter issue is important because American Indian and Alaska Native people are convicted of felonies at a higher rate due to jurisdictional issues that plague Indian Country, according to a report by the Native American Rights Fund.

“The federal government has the jurisdiction to prosecute crimes on Native land. Unfortunately, what that means though is that the types of crimes that the federal government, the U.S. Attorney, is interested in, or used to prosecuting are often felonies,” said Jacqueline De Leon, an attorney for the Native American Rights Fund. “Because of this jurisdictional vacuum, where the U.S. government is prosecuting crimes on Native land, we end up with a lot of felony convictions for Native people.”

In the project’s next report set to release this year, there will be some state-by-state data on Indigenous people and felony disenfranchisement.

This voter issue is important because American Indian and Alaska Native people are convicted of felonies at a higher rate due to jurisdictional issues that plague Indian Country, according to a report by the Native American Rights Fund.

“The federal government has the jurisdiction to prosecute crimes on Native land. Unfortunately, what that means though is that the types of crimes that the federal government, the U.S. Attorney, is interested in, or used to prosecuting are often felonies,” said Jacqueline De Leon, an attorney for the Native American Rights Fund. “Because of this jurisdictional vacuum, where the U.S. government is prosecuting crimes on Native land, we end up with a lot of felony convictions for Native people.”

One year ago, New Mexico passed a bill that restored the voting rights of people who were finishing probation or parole — giving 17,000 people the ability to cast their ballots, according to OLÉ, a community organizing nonprofit in New Mexico.

“If they had any fees that had to be paid that was considered part of their sentence,” said Leila Salim, communications director for OLÉ. “There were things like that, that were keeping people in that system of never being able to register to vote, and it’s that group of people that we were trying to get their rights restored, and that’s the group of folks that did get, technically, their ability to get their rights restored.”

“Whether that’s actually working is to be determined.”

The organization has heard from organizers on the ground that some people with felony convictions are still not being allowed to register to vote and their applications are being denied.

“If folks are out, if they’re not inside, if they’re not behind bars, they can vote, essentially, which is a big step for New Mexico,” Salim said.

There are 23 federally recognized tribes in what is now known as New Mexico. According to the U.S. Census, 12.7 percent of the state’s population is Indigenous — this percentage includes people who are American Indian, Alaska Native, Native Hawaiian, and Pacific Islander, alone or in combination with other races.

People who are incarcerated or formerly incarcerated bring an important perspective to issues that many Americans simply don’t know about, have never experienced, or understand. They often are some of the most vulnerable people in a community — experiencing poverty, addiction, homelessness, or mental health disorders.

“Everybody not only has a second chance, but everybody’s better than their worst moment, and especially in a system that can be designed to penalize you much harsher for your worst moment, there’s an injustice in that,” De Leon said. “Participating in voting is a way that we can change those systems to make them fairer, and I hope that Native people start engaging, and that we can make the system more fair.”

Felony disenfranchisement is rooted in racism and was used to keep Black people from voting in the South. It became widespread after the Civil War and Black people began to gain rights in the United States.

The criminal justice system continues to incarcerate Black people and other people of color, despite making up a lower national population, at higher rates than White people. American Indians and Alaska Natives were incarcerated at nearly 40 percent higher than the national average. In Montana, Native people make up to 34 percent of the state prison population according to a report titled, “Over-Incarceration of Native Americans: Roots, Inequities and Solutions.”

The United States is the only modern democracy in the world that continues to strip its citizens of voting rights because of past criminal convictions. The roots of felony disenfranchisement reach from the past into the present and continue to impact voter rights.

“Light is a disinfectant, and we have to keep shining a light here,” De Leon said. “It’s definitely been buried for a really long time. A lot of people don’t think about Native people when they think about police brutality, or all of the sort of abuses of the system that occur both at the state and federal level. We have to continue to investigate and shine a line on all this injustice so that we can get change.”