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Complaint calls for absentee ballots, delayed vote count in western North Dakota tribal election

NEW TOWN, N.D. — Two enrolled tribal members have filed for an injunction to delay the final vote count in the Three Affiliated Tribes election Tuesday.

Raymond Cross of Tucson, Ariz., and Marilyn Hudson of Parshall seek a tribal court order directing the Three Affiliated Tribes business council to send absentee ballots to all non-resident tribal voters and impose a 30-day stay in announcing results of the tribal chairman election to allow time to process the absentee votes. Tribal Chairman Mark Fox and former tribal chairman Tex Hall are on the ballot.

Represented by the Zuger Kirmis & Smith Law Firm of Bismarck, the plaintiffs have requested an emergency hearing in New Town on Monday.

Since 1986, enrolled tribal members have been required by their constitution to return to Fort Berthold Reservation to vote in tribal elections. Previously, there had been the option of absentee ballot. According to a release from Cross and Hudson, the change came about due to a 1979 rivalry between political factions over which tribal chairman candidates were to be given access to the off-reservation voters list. The result was growing sentiment among the on-reservation tribal population to end absentee balloting.

In an advisory questionnaire issued by the tribe in 2016, 88 percent of respondents living on Fort Berthold favored restoring absentee ballots, according to the complaint. The plaintiffs report they petitioned the Tribal Business Council in July regarding a referendum to change the constitution but have not yet received a response.

The complaint cites the Fifth Amendment to the U.S. Constitution, which prohibits the government from denying basic constitutional rights, and argues the in-person voting requirement serves no compelling public interest.

Only 2,000 of the approximately 11,000 legally eligible tribal voters of the Three Affiliated Tribes cast ballots in the recent primary election for tribal chairman and for three open council seats on the Tribal Business Council because about 75 percent of the qualified tribal voters reside off Fort Berthold and would have to travel to the reservation to vote, regardless of the degree of hardship to do so, according to the complaint.

Cross, a former Three Affiliated Tribes tribal attorney, and Hudson are members of The Fort Berthold Legacy Vision, a membership organization comprised of on- and off-reservation citizens. The Fort Berthold Legacy Vision engages in advocacy to give tribal citizens access to and involvement in tribal matters.