Nick v. Bethel – Voting in Yup'ik
« previous post | next post »
The case of Nick vs. Bethel, a lawsuit by Yup'ik Eskimos against the city of Bethel, Alaska, has elicited a good bit of comment recently due to a recent ruling that Yup'ik is not a "historically written language". A not atypical example is this comment on an indigenous language mailing list to which I subscribe:
This ruling seems to express a deep bias of Western culture. That is, written language is taken to be the model product of language/cultural evolution overall. Certainly, one could say that as a ruling it not just discriminates against Yup'ik speakers, but against most all indigenous languages in general as well as against oral-based cultures world wide.
Few people commenting on this ruling seem to be familiar with the details of the case, which it is helpful to understand before forming an opinon.
The gist of the case is well described in this press release by the Native American Rights Fund and American Civil Liberties Union. In short, the plaintiffs, all Yup'ik elders, claim that they have been unable fully to exercise the franchise due to their limited understanding of English and that the State of Alaska via the city of Bethel has made inadequate provision for assisting them. Here are the complaint and the plaintiffs' statement of fact. The suit requests a preliminary injunction forbidding the use of the inadequate forms of assistance hitherto in use.
The defendants moved for partial summary judgment on the question of whether the state is obligated to provide assistance in writing. The ruling that has generated the recent controversy is Judge Burgess' decision on that motion, in which he held that Yup'ik is "historically unwritten" and that therefore the State of Alaska is not obligated to provide written assistance, such as a Yup'ik translation of the ballot. His ruling has no effect on the question of whether oral assistance must be improved.
Why is it relevant whether Yup'ik is "historically unwritten"? This is not a criterion created by the court, but a provision of the Voting Rights Act, the relevant section of which, 42 USC 1973b 4(f)4, reads as follows:
Whenever any State or political subdivision subject to the prohibitions of the second sentence of subsection (a) of this section provides any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, it shall provide them in the language of the applicable language minority group as well as in the English language: Provided , that where the language of the applicable minority group is oral or unwritten or in the case of Alaskan Natives and American Indians, if the predominate language is historically unwritten, the State or political subdivision is only required to furnish oral instructions, assistance, or other information relating to registration and voting.
The Voting Rights Act requires oral and written assistance for speakers of languages other than English, but requires only oral assistance for Alaskan Natives and American Indians if their language is "historically unwritten". It is this provision of the Voting Rights Act on which the defendants based their motion for partial summary judgment, and this is why the court had to decide the question of whether Yup'ik is "historically unwritten". Given the evidence before the court and the vagueness as to what exactly it means for a language to be "historically unwritten", I do not think that Judge Burgess' decision can be regarded as unfair. It certainly does not reflect any judgement as to the relative value of literacy and orality or of purely oral languages and languages that are both oral and written. Nor does this decision mean that Yup'ik speakers are not entitled to better assistance in voting. All it means is that Alaska is not required by the Voting Rights Act to provide that assistance in writing.
What is curious is why Congress included the word "historically" in the text of the statute. If the purpose of the law is to facilitate informed voting by members of linguistic minorities, it would seem that it would require the use of such measures as are appropriate, which would likely including written materials if the language is presently written. Why the state should be exempted from providing written materials if literacy in the language is recent is unclear. A charitable interpretation would be that Congress did not wish to put the states to the trouble and expense of providing written materials in minority languages where few if any members of that minority would benefit from them and that the inclusion of "historically" was a perhaps less than adequate attempt to restrict the requirement of written materials to languages whose speakers are truly literate in them. Of course, this being politics, I wouldn't rule out a more nefarious purpose, but it isn't at all obvious what that would be.
James said,
July 24, 2008 @ 8:27 am
I'm curious about the term "Alaskan Natives and American Indians". I'm assuming it is a term, since these words seem to always appear next to each other. Why are they in two categories? How do the Hawaiians fit into this?
Don said,
July 24, 2008 @ 8:58 am
Narrow, descriptive use of a term such as "historically written" may have a place, but is there not also a risk it could be more widely applied either to fix a category that handicaps future use of languages with oral traditions, or in blatantly discriminatory ways?
Also, if oral assistance in a "historically unwritten" language is offered to voters who need it, how is it given? Do the poll workers translate ad hoc or read off of a script / talking-points in the relevant language? The former would seem to be problematic and the latter conceding something about the language's written status.
David Eddyshaw said,
July 24, 2008 @ 9:57 am
I guess that the "Alaskan Natives and American Indians" thing is because Yup'iks and Inupiaqs and Aleuts don't self-identify as American Indians.
I imagine the various Athabaskan groups do, though.
I've no doubt that there are LL readers who know.
S Onosson said,
July 24, 2008 @ 11:29 am
There is a parallel situation in Canada, where First Nations (analogous to "American Indians") are recognized distinctly from the Inuit, as well as the Metis – so you often hear phrases such as "First Nations, Inuit and Metis" to refer to them collectively.
kip said,
July 24, 2008 @ 12:10 pm
Yeah, but why not a provision for Hawaiian Natives too? They don't identify themselves as American Indians either, do they? The law was passed in 1973, after Hawai'i became a state.
Ian said,
July 24, 2008 @ 12:15 pm
While doing research on pre-Columbian literacy in the Americas, I saw that even the most pro-indigenous rights academics still have an incredibly strong bias towards using the written word as a starting point. Advanced writing systems are a step forward, and oral culture is always a step back. These academics do wonderful work and I do not believe they have any biases against oral culture or the peoples still practicing oral literariness, but they always seem to approach with writing as some ideal model. Oral culture always seems to lack something for them. As I did my research, the same bias was revealed in myself, and I do not know whether or not I have tamed it yet, to get a different perspective on my own work.
James said,
July 24, 2008 @ 12:40 pm
Just thought of something – wouldn't oral assistance remove the "secret" part from "secret ballot"? How do you keep your vote to yourself when you have to talk about?
James A. Crippen said,
July 24, 2008 @ 1:03 pm
@Kip: Because Native Hawaiians are not in a guardian-ward relationship with the United States government. There was no treaty nor a semblance of one (the Russians handed over Alaska with some instructions on how to treat with the locals), and there has yet to be any governmental negotiations between a representative body of Native Hawaiians and the US government.
@David Eddyshaw: Yes, Athabaskan folks tend to identify as “Indian”, as do Eyak, Tlingit, Haida, and Tsimshian people. The Yup’ik, Siberian Yupik, and Inupiaq usually identify themselves as “Eskimo”, to the dismay of the Inuit in Canada. The Aleut and Alutiiq/Sugpiaq don’t identify as anything but “Alaska Native” in my experience, although arguably the Alutiiq/Sugpiaq could be considered Eskimo linguistically, but not really culturally.
Back to the original subject. One of the things that is problematic with arguing for “historically written” status is the Cyrillic writing that was introduced by Bishop Ivan Veniaminov, canonized as St. Innocent of Alaska. He developed orthographies for indigenous translations of Russian Orthodox liturgical materials back in the 1840s. His efforts were most successful among the Aleut and Alutiiq/Sugpiaq, less so among the Dena’ina, Tlingit, and Yup’ik.
For Tlingit, the language I work on, there are essentially no materials other than liturgical stuff and Veniaminov’s attempt at a grammatical description. The orthography for Tlingit seems to have never been used outside of the cathedral in Sitka. I imagine that similar conditions apply for the other non-Aleut groups under Russian influence, so although the language was “written”, people were essentially still illiterate other than one or two individuals. Literacy today is rare, even with the development of somewhat successful orthographies for Tlingit in the 1960s and later, and with the publication of a number of books in the language. I know that Yup’ik literacy is better, but my impression from having grown up around a lot of Yup’ik people is that literacy isn’t exactly a common thing, although it’s more likely for younger speakers.
The court is certainly trying to do its job as an interpreter of the law, and I don’t hold this decision against them, although I’m disappointed by it. I would suggest that the state offer interpreters at each polling station, a task which would probably be fairly easy if they were drawn from the community like most poll workers are. But most importantly, the state should provide summaries in Yup’ik for use by the poll workers, which would be a nice compromise since it would cost much less than printing ballots in Yup’ik.
Jessen said,
July 24, 2008 @ 1:04 pm
Not sure when the government first recognized Hawaiian Natives as a separate group, but it certainly does now. "American Indian or Alaska Native" is one category, while "Native Hawaiian or Other Pacific Islander" is another.
Alaska Employment Law said,
July 24, 2008 @ 2:08 pm
[…] 07/24/08 Update: For more commentary on the decisions, go to Bill Poser's post on Language Log. […]
Jason F Siegel said,
July 24, 2008 @ 5:05 pm
@ James (not James A.)
Getting assistance with a ballot does not mean you have to tell someone who you want to vote for. An interpreter could tell you how to locate the presidential candidates, how to actually cast the vote, etc. and no information need be revealed. To make it easier, some may reveal their choice to their interpreter, but this is no foregone conclusion.
JK said,
July 24, 2008 @ 7:40 pm
To clarify the Alaskan Natives vs. American Indians vs. Native Hawaiians issue a bit, though I'm not certain of why the VRA was drafted as it was, it is true that each of these three groups falls into a different framework under federal law. American Indians are, essentially, indigenous communities from the lower 48. There is a federal legal framework for recognizing American Indian tribes as domestic-dependent sovereigns. That framework does not include Alaskan Natives nor Native Hawaiians. Alaskan Natives are organized into various geographically-based corporations and quasi-sovereign Alaskan Native Villages. Hawaiian Natives do not exercise any federally-recognized sovereignty, but some federal American Indian benefit programs also provide benefits to Hawaiian Natives.
The Ridger said,
July 24, 2008 @ 10:10 pm
Blind voters also usually have to have assistance, though that's one place the new machines are good – they can have auditory cues.
mpb said,
July 25, 2008 @ 1:37 pm
The terminology mostly has to do with federal law and even Congressional action. Unfortunately, the terms are often borrowed from other arenas where there is specific technical meaning.
In this case, AI/AN or American Indian / Alaska Native is fedspeak to group federally recognized entities as "tribal governments" but also as a shorthand for biological (ethnic) populations, e.g., under CDC. Native Hawaiians are not "tribes" or "tribal governments". They are recognized by the Census as ethnic populations and by some legislation for specific purposes but are not "tribes" or "tribal governments". Not all "tribes" are "reservations" (only 1 in Alaska; 3 out of 23 in NM, and none in Oklahoma) but this is a whole other messy bit. Some/most of the complexity is because Congress forgets there are additional governments who have a distinct official relationship with the US and then tries to cobble solutions ("Indian Country" is another such term) using borrowed terminology.
Indian peoples are distinct historically, demographically, and culturally from Eskimo peoples. Because Alaska has both Indian and Eskimo peoples and a third group, Aleut (Unagan) peoples the collective noun is Alaska Natives (not Native Alaskans or Eskimo Indians or Native American Indians). Athabascans are Indians but in the context of Alaska usually refer to themselves collectively as Athabascans (spelled with a c not a k and with a b not a p).
There were three major written versions of Yup'ik language (Yup'ik peoples are one of the three major classifications of Eskimo in Alaska. This is not a legal term but a linguistic/cultural one). The Russian, Old Yup'ik, and New Yup'ik. The last two result from the past 100 years of Moravian influence. Old Yup'ik is the version most older people, if they read Yup'ik, can read. New Yup'ik is a streamilined version currently taught in schools.
The basic issue in Bethel and western Alaska for voting was that 1) there are no official translators or assistants available to voters. There are unofficial ones, whose unbiassed approach to voting can't always be trusted. 2) Even if there were certified neutral translators, the ballots and propositions are complicated enough in English. There is no provision yet for a recognized unbiassed translated ballot which could then be read to those needing voting assistance. Materials are not distributed in local languages. (We also have substantial numbers of other languages such as Korean, Russian, Spanish which are also provided for in English only).
The written materials are not needed for the voter, per se, but for the assisting person (those who read new Yup'ik also read English; older people whose first or primary language is Yup'ik may not be literate in the language. This may also be true of younger people more comfortable in Yup'ik but who do not read it.)
It has been a long recognized but unmet need.
Norval said,
July 25, 2008 @ 6:37 pm
Would this not be a nice case for your Supreme Court. Whether making a distinction between written and spoken language in the framing of a law, as distinct from a (practical) regulation, is in fact constitutional
Flooey said,
July 26, 2008 @ 10:28 am
My guess is actually that someone added the "historically unwritten" in order to provide a somewhat easier-to-execute definition than "presently unwritten", as well as governmental requirements that would not change very quickly. One can envision a situation where some speakers of a purely oral language decide to invent a written language (or potentially, different groups of speakers invent several distinct written languages) and then desire help in their written language. The addition of "historically" is probably intended to make it so that in that situation, the government doesn't need to either figure out which new written language(s) to support or not and also doesn't have a written language spring out of nowhere and add new requirements to their elections.
Bill Poser said,
July 26, 2008 @ 2:03 pm
I've found one useful piece of information. Here are the Justice Department's Guidelines for interpreting the Voting Rights Act.
The portion of immediate relevance is this:
So, it looks like the DOJ interprets the statute as using current literacy as the criterion in spite of the term "historically unwritten".
Ken Brown said,
July 28, 2008 @ 10:26 am
As Hawaiian is a written language I guess there is no point in mentioning it in a clause about unwritten languages.