"Citizens in 64 of the 66 counties in South Dakota enjoy the right to cast their votes beginning six weeks prior to Election Day—which means that many state residents have been voting for the past three weeks. The two counties that have been denied this right? Todd and Shannon Counties, which have Native populations of 85 and 95 percent respectively," said Greg Lembrich, a litigator with Pillsbury in New York. Lembrich has been working pro bono with South Dakota's Native American nonprofit group, Four Directions, to try to resolve this issue for the past three months.

Because Todd and Shannon County are "unincorporated," they do not have county governments. Instead, elections for these two areas are controlled by officials in neighboring counties. These officials have claimed that they lack the resources to provide an early voting location within Todd or Shannon County.

“But there’s money to solve this problem from the Federal government, and it’s not lost on any of us that only in predominately Indian regions is the ability to vote early being blocked," said Lembrich.

Lembrich adds that, by taking away the rights of citizens to vote early closer to their own communities, the state is essentially taking away the rights of these groups to vote early at all. Given that the nearest polling stations are typically more than a hour’s drive away on bad roads, and only one in three households on the Rosebud and Pine Ridge reservations own a working car, allowing citizens more time to vote is crucial.

According to the 2000 census, Shannon is the second poorest county in America and Todd is the fifth—indeed four of the five poorest counties in all of the United States are Indian reservations in South Dakota.

“The unemployment level is more than 80 percent in both Pine Ridge and Rosebud, and many families that live on these reservations lack basic necessities like heat and running water in a place where the temperature averages 19 degrees in winter. Nearly half of the adult population suffers from diabetes, life expectancy is 20 years less than the national average, and infant mortality is twice the national average," Lembrich said. “ But the citizens of Rosebud and Pine Ridge want to vote, and they deserve the same opportunities as everyone else to do so.”

With Pillsbury’s assistance, Four Directions has already been successful in its fight to stop Mellette County, another South Dakota county with a large Native American population, from shutting down all polling places within the 1,300 square mile region except for one in the majority-white county seat of White River. Four Directions pressed the county not to make this change, which would have effectively disenfranchised hundreds of voters with limited access to transportation. Local officials were unsympathetic, claiming the decision was purely financial, although they did acknowledge that the decision would substantially lower voter turnout from the Indian communities.

Four Directions Executive Director O.J. Semans next appealed to South Dakota’s Secretary of State, who called the situation “unfortunate.” The State claimed it had no “authority” to prevent it, however, and declared that the County could not use HAVA (Help America Vote Act) funds to keep the polling places open, even though those funds had been used for such purposes in the past.

Four Directions, in conjunction with the ACLU, therefore prepared to file a lawsuit on the Indians’ behalf seeking an injunction. Only then did Mellette County local officials back down. All of the polling places will now be open on Election Day in Mellette, and Native Americans will be able to vote in their own communities.

“When Mellette County reversed course, we hoped the nearby officials overseeing the election in Todd and Shannon Counties would likewise feel compelled to set up early voting on the reservations, comparable to what they are providing in the rest of the state. But after pleading repeatedly with the auditors and commissioners, all we've thus far been able to secure is just two days of early voting in Shannon County, and Todd County will have just one—for six hours on a Sunday. So the fight must go on.”

Lembrich has now enlisted nine other colleagues from Pillsbury, a nationally recognized leader in the practice of Indian Law, to fly to South Dakota on their own dime to do what they can to help. Lembrich says that Pillsbury will continue to provide pro bono support, but with Election Day just 18 days away, many of the other organizations that had been supporting Four Directions now have other commitments elsewhere, leaving the group short-handed.

“While voter registration drives, community activism, and legal actions to protect the rights of Native American voters have lead to a dramatic increase in voting on the South Dakota Indian reservations in the past decade, early voting, available for the first time in 2004, played a critical role in increasing turnout. From the 2000 to 2004 elections, with the introduction of early voting, the number of votes cast in Todd and Shannon County rose 139 percent and 122 percent, respectively. Nearly half of the votes in the 2004 election in Todd County were cast at a satellite precinct that was set up on the reservation in the weeks prior to Election Day. Taking away this opportunity in this year’s election is a giant step backwards when it comes to equal rights for Native Americans.”