Background:
When the 2020 Census revealed that Native Americans now comprise nearly 60% of the total population of Thurston County, Nebraska, officials intentionally adopted districts that dilute the impact of the Native vote.
In 2021, the tribal governments of the Winnebago Tribe of Nebraska and the Omaha Tribe of Nebraska attended multiple redistricting meetings and presented maps to demonstrate how the county could update boundaries in a way that would comply with the Voting Rights Act (VRA). In response to the Tribes’ testimony, the County Board of Supervisors rescinded a redistricting map it had approved just days before, in favor of a map that actually lowered the Native American populations in Districts 3 and 5 even further.
“Not only did the Thurston County Board of Supervisors reject the VRA-compliant map shared by the Winnebago Tribe and the Omaha Tribe, but once the Tribes made their concerns known, the Board decided to make its bad map even worse, by reducing the number of Native Americans in Districts 3 and 5. This is a slap in the face to the Tribes and tribal members in the county, and shows another example of discrimination on the part of the county against tribal members,” said Winnebago Tribe of Nebraska Vice-Chairman Brian Chamberlain.
Native American people comprise nearly 60% of the total population of Thurston County and a majority of voting-age residents. To ensure the district map complies with the VRA and accounts for the nearly 11 percent decrease of non-Native voters in Thurston County since the previous census, officials must create election district boundaries that allow Native voters a chance to elect representatives of choice in a minimum of four of the seven districts. However, in violation of the VRA, Districts 3 and 5, as approved by the county, provide only a bare majority of Native American voters the ability to elect their candidate of choice.
“Native Americans now make up a majority of the voting-age population in Thurston County. Instead of following the law to provide four of the seven districts with effective Native American voter majorities, the board rigged the district map in a way to reduce Native American representation into the minority,” said plaintiff and Tribal Secretary of the Omaha Tribe of Nebraska Cheyenne Robinson.
The Litigation:
January 2023: Complaint Filed
On January 19, 2023, the Native American Rights Fund (NARF), the Lawyers’ Committee for Civil Rights Under Law, and Big Fire Law and Policy Group filed a lawsuit at the U.S. District Court for the District of Nebraska on behalf of the Winnebago Tribe of Nebraska, the Omaha Tribe of Nebraska, and individual tribal members against Thurston County and elected county officials for adopting county supervisor districts that intentionally dilute the Native vote and do not comply with federal VRA protections. If the case is successful, it will be the third time Thurston County’s Board of Supervisor redistricting plans have been found to violate the VRA by discriminating against Native American voters.
“To comply with the VRA, the elected officials responsible were required to create four effective districts that would allow the Native American voters to elect the candidate of their choice, and instead the Thurston County Board of Supervisors created only three. This is the third time tribal members in Thurston County have had to sue the county based on its discriminatory redistricting maps; and this will be the third time a federal court will strike down the county’s map,” said plaintiff and Winnebago Tribe of Nebraska Chairwoman Victoria Kitcheyan.
The lawsuit seeks declaratory and injunctive relief from the federal court after Thurston County officials failed to comply with the VRA. This comes despite requests from the Winnebago and Omaha tribal governments during the county’s redistricting process.
“Thurston County must comply with the Voting Rights Act protections that allow every vote, including Native votes, to count,” said NARF Staff Attorney Michael Carter.
November 2023: Native Voters and Tribal Nations Negotiate Fair Districts in Nebraska
Native voters, the Winnebago Tribe of Nebraska, and the Omaha Tribe of Nebraska have successfully negotiated a court-approved redistricting plan with Thurston County to settle the redistricting lawsuit Winnebago Tribe and Omaha Tribe, et. al. v. Thurston County, et. al. On January 26, 2024, the U.S. District Court for the District of Nebraska approved a consent decree that requires the Nebraska county to adopt a new district plan to provide Native Americans a fair opportunity to elect candidates to the Thurston County Board of Supervisors. Local elections will use the new map starting in next year’s elections and until the next redistricting process begins after 2030.
“Native people in Thurston County have thrived against all odds in spite of any setback, and this includes defending Native voters’ right to participate in legal and fair elections in Nebraska,” said Winnebago Tribe of Nebraska Chairwoman Victoria Kitcheyan. “We negotiated the new district map with county officials so Native voters will have a fair chance at electing candidates to the Board of Supervisors in 2024.”
“This case shows that we will keep fighting for our right to vote,” said Omaha Tribe Chairman Jason Sheridan. “The new consent decree resolves the third and hopefully last lawsuit against Thurston County to get a legal and equitable redistricting process. The Omaha Tribe is dedicated to fight any legal battles Thurston County throws at us.”
In 1979, courts subjected Thurston County to a consent decree forbidding the adoption of an at-large voting system as violating Section 2 of the VRA, because an at-large system would disenfranchise the estimated 28% population of Native voters in the county at the time. As a result of another lawsuit, the courts in 1996 required Thurston County to create a legal district map that fairly apportioned the then estimated 36% population of Native voters in accord with the VRA. The 2023 consent decree requires Thurston County to create a legal district map that reflects that Native Americans now comprise almost 60% of the county’s population and make up a majority of the voting age population of Thurston County. During Thurston County’s redistricting process after the release of the 2020 Census, the Board of Supervisors refused to implement a VRA-compliant map proposed by both Tribes, and instead adopted a map that will now be replaced by a VRA-compliant map as required under the new consent decree.
Before approving the consent decree, the court asked the parties to submit briefing on what effect a recent Eighth Circuit opinion had on the court’s ability to approve the consent decree. That Eighth Circuit case, Arkansas State Conference NAACP v. Arkansas Board of Apportionment, made the unprecedented ruling that private citizens do not have a right of action under Section 2 of the VRA. However, the judge ultimately found that authority does exist for the Nebraska court to approve the consent decree.
The Native voters and tribal governments, represented by the Native American Rights Fund (NARF), the Lawyers’ Committee for Civil Rights Under Law, and Big Fire Law and Policy Group, retained their right under the new consent decree to take Thurston County back to court should the county officials fail to abide by the new decree.
“Fair and legal elections will finally take place in Thurston County, only after Tribes and Native voters fought to secure an equitable district map,” said NARF Staff Attorney Michael Carter.
“This consent decree reinforces the essential mandate that district lines cannot be drawn in a way that stops voters of color from participating fully and equally in our democracy. ” said Ezra Rosenberg, co-director of the Voting Rights Project of the Lawyers’ Committee for Civil Rights Under Law. We and our clients have produced a court approved redistricting plan that removes the barriers that would have prevented Native Americans in Thurston County from electing their candidates of choice.”
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