Congress enacted the Indian Civil Rights Act (ICRA) in 1968 as Title II of the 1968 Civil Rights Act. Portions of the ICRA that substantially mirror the Bill of Rights are popularly called the ‘‘Indian Bill of Rights.’’ The Indian Bill of Rights extends most of the constitutional protections of the Bill of Rights to individuals under the jurisdiction of Indian tribal governments. In order to preserve certain aspects of tribal government and sovereignty, some parts of the Bill of Rights were modified or left out. The individual rights protections include:
rights to free exercise of religion, free speech, press, assembly, and to petition for a redress of grievances
right to be free of unreasonable searches and seizures without a search warrant to be issued only upon a showing of probable cause
right to be free from being placed in double jeopardy and from self-incrimination right to due process and equal protection
right to be free from taking of property without just compensation
rights to a speedy trial, confront witnesses, and the assistance of counsel
freedom from excessive bail and cruel and unusual punishment
freedom from bills of attainder and ex post facto laws
right to a jury of at least six persons (less than in federal law) in all criminal cases carrying the possibility of imprisonment
The main differences include the absences of an establishment clause, a right to counsel at the government’s expense, and the lack of a right to a jury trial in civil cases. Also, the ICRA prohibited Indian tribes from sentencing convicted criminals to more than six months in prison and $500 in fines (later amended to one year and $5,000).
The Supreme Court had originally decided in Talton v. Mayes, 163 U.S. 376 (1896) that, since tribal sovereignty flowed from a time immemorial and tribes had not participated in the drafting of or consented to the U.S. Constitution, the individual rights protections that limited federal (and later state) governments did not apply to tribal governments. The Court reaffirmed earlier decisions such as Worchester v. Georgia, 31 U.S. (6 Pet.) 536 (1832) that labeled Indian tribes as ‘‘domestic dependent nations,’’ whose sovereignty derived not from federal or state authority, but flowed from inherent tribal sovereignty that had never been extinguished.
In Talton, a non-Indian convicted of murder in the courts of the Cherokee Nation petitioned for a writ of habeas corpus in federal court. He argued that the Cherokee Nation had indicted him with a five-person grand jury. Under Cherokee Nation law, thirteen persons were required to indict a defendant validly for murder. The Court rejected the petition on the basis that the Fifth Amendment, by its terms, only applies to the federal government, not tribal governments.
In the 1950s, non-Indians had brought several cases to the federal courts seeking a civil rights remedy for actions taken against them by tribal governments. In Martinez v. Southern Ute Tribe (249 F.2d 915, 10th Cir. 1957, cert. denied, 356 U.S. 960, 1958), for example, the Tenth Circuit Court rejected a dueprocess challenge to a tribal decision to deny membership rights to an individual Indian. In that case, the Southern Ute Tribe allegedly refused to allow a woman with a tribal member mother and a nonmember Indian father to participate pro rata in the economic benefits of the tribal corporation.
In Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959), the Tenth Circuit ruled that the Navajo Nation was not bound by the First Amendment and could prohibit the ritual use of peyote by members of the Native American Church within its territory. Members of the church had argued that they had used peyote for religious purposes from time immemorial. In Barta v. Oglala Sioux Tribe (259 F.2d 553, 8th Cir. 1958, cert. denied, 358 U.S. 932, 1959), the Eighth Circuit Court ruled that the Fifth Amendment’s due process clause and the Fourteenth Amendment’s equal protection clause did not restrict an Indian tribe from imposing a tax on non- Indians for use of tribal lands, but not on tribal members. In that case, non-Indian lessees of tribal trust lands on the Pine Ridge Reservation sought to avoid a grazing and farming license tax imposed by the tribe.
In 1961, the Senate Subcommittee on Constitutional Rights began an investigation of constitutional rights in Indian Country by sending out two thousand questionnaires to persons familiar with Indian tribes, followed thereafter by a series of hearings in states with relatively large tribal populations that took place over several years. Judicial concern over civil rights violations by tribal courts in criminal cases came to a head when the Ninth Circuit Court decided Colliflower v. Garland, 342 F.3d 369 (9th Cir. 1965). In that case, the Gros Ventre tribal court sentenced a woman to five days in jail for failure to remove her cattle from land leased to another person.
The Ninth Circuit took jurisdiction over the case— even though the events took place on the reservation and the parties were all tribal members—on the theory that the federal government had funded the tribal jail. It is likely that the court took the case because the tribal court had not allowed Colliflower to have an attorney or to confront witnesses against her—serious civil rights violations. Normally, federal and state courts would not have had jurisdiction over these internal tribal matters.
The Senate’s concern related to tribal government practices centered on the criminal procedure provided by tribal courts. The Senate took testimony that suggested that most tribal courts were relatively crude in comparison to state and federal courts. Tribal judges rarely had legal training and tribal court records were poor at best. The Senate pounced on the fact that most criminal defendants before tribal courts confessed easily and without the advice of counsel. But this ignores the fact that, in nearly all tribal communities, the concept of punishment for criminal acts is a foreign notion. Under tribal traditions and customs, those who commit crimes are taught to admit the infraction with the understanding that they will not be severely punished. Tribal criminal jurisprudence is more restorative than retributive.
Many Senators and advocates were also more generally concerned of the possibility that somewhere in the United States were enclaves in which there were no civil rights protections from governmental activity. The Senate took testimony from numerous individuals who claimed to have been treated unfairly by tribal governments. Others were concerned that many Indian tribes did not provide an independent adjudicative body apart from the tribal council. Though the Senate hearings were replete with much anecdotal evidence of tribal government unfairness and concerns about tribal government structures, the legislature was far more concerned with procedural rights of criminal defendants in tribal courts. The provision for habeas corpus review of tribal court convictions evidences that this concern weighed more heavily with Congress than civil cases did. Significantly, the ICRA makes no other provision for federal court jurisdiction over tribal court decisions or for civil rights violations by tribal governments.
Specific provisions in the final version of the ICRA strongly imply that Congress intended to preserve as much of tribal culture as possible. Congress left out a provision equivalent to the establishment clause in order to preserve the rights of tribes to form and maintain theocratic government structures if they wished, as some tribes had. Even in the area of criminal procedure, the Senate subcommittee explicitly questioned whether imposition of certain criminal procedures would injure tribal culture or exert a significant impact on the tribal governmental capability. On the question of whether Indian tribes should be obligated to provide attorneys to indigent defendants, the subcommittee appeared particularly concerned that Indian tribes did not have the financial capacity to fund public defender offices. The Department of Justice also testified that few attorneys were available on reservations and that, since most tribal prosecutions dealt with tribal customary and traditional law, attorneys were not necessary.
After the enactment of ICRA, numerous individuals brought civil rights cases in federal court that attempted to vindicate the rights protected in the ICRA. In Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), Julia Martinez brought a sex discrimination claim under the ICRA against her tribe, seeking membership for her children. The Pueblo had enacted an enrollment ordinance that denied membership to the children of women who were tribal members when the father was not a member. Conversely, children of Santa Clara Pueblo men and nonmember women would be enrolled. The father of Martinez’s children was a Navajo man and the Pueblo denied her children membership.
The Supreme Court held that Congress, in enacting the ICRA, did not confer federal court jurisdiction to resolve civil rights complaints against tribal governments and, in any event, tribal sovereign immunity barred Martinez’s claim. The Court, per Justice Marshall, stated that complainants against tribal government actions must pursue a tribal forum. The Court also noted the possibility that individual officers of Indian tribes could be sued for prospective equitable relief, similar to how federal officials could be sued under Ex parte Young, 209 U.S. 123 (1908).
Following Martinez, many Indian tribes began to develop their tribal courts more intensely. Tribes began to incorporate their versions of the Bill of Rights into new or amended tribal constitutions. As a result, tribal courts apply their tribal customs and traditions to civil rights cases. For example, the Navajo Nation Supreme Court in Navajo Nation v. Crockett, 7 Navajo Reporter 237 (1996), applied Navajo traditional principles in upholding a restriction on free speech enacted by the Navajo Tribal Council. In Snowden v. Saginaw Chippewa Indian Tribe, 32 Indian Law Reporter 6047 (2005), the tribal court applied important tribal values to a civil rights case related to a long-standing membership dispute. The Turtle Mountain Band of Chippewa Indians in Turtle Mountain Judicial Board v. Turtle Mountain Band of Chippewa Indians (No. 04-007, Turtle Mountain Band Appellate Court, 2005), adopted sophisticated rules relating to judicial independence from the political branches of the tribe.
Not all Indian tribes provide a tribal court for the resolution of disputes. Shortly after the Court decided Martinez, the Tenth Circuit decided Dry Creek Lodge v. Arapahoe and Shoshone Tribes (623 F.2d 682, 10th Cir. 1980, cert. denied, 449 U.S. 1118, 1981). There, the tribal council had blocked a road on the reservation that led to the private property of non-Indians who had built a resort on the parcel. The parcel had once been owned by an Indian family that resided on the reservation, but they had lost it due to a tax foreclosure. The tribal council refused to grant the property owners access to the tribal court for review of their decision, forcing them to seek a federal court injunction.
Ignoring Martinez, the court took jurisdiction and granted the injunction on the basis that the tribes’ action had been egregious and that there was no tribal dispute resolution forum available. The Tenth Circuit has limited Dry Creek Lodge to its facts and has not invoked this so-called ‘‘exception’’ to Martinez again. Other federal circuits, such as the Ninth Circuit in Johnson v. Gila River Indian Community, 174 F.3d 1032 (9th Cir. 1999), refuse to adopt this holding, questioning its validity.
The lone federal cause of action contained in ICRA is the provision allowing individuals convicted of a tribal offense to petition for a writ of habeas corpus in federal courts. The meaning of this phrase has been extended by some federal courts to include banishment or exclusion from reservation lands. In Poodry v. Tonawanda Band of Seneca Indians (85 F.3d 874, 2nd Cir., cert. denied, 519 U.S. 1041, 1996), the Second Circuit Court granted a petition for a writ of habeas corpus when the tribal council banished several tribal members for treason. The council also stripped them of their property and citizenship within the tribe. The banished individuals received no hearing prior to being deprived of their membership and property.
The court concluded that the order requiring the members to leave the reservation amounted to a restraint on liberty sufficient to invoke the habeas corpus review provision in the ICRA. The tribe argued that summary banishment was consistent with tribal customary law and that federal court intervention into tribal affairs violated the spirit and intent of the ICRA. The court rejected that argument, noting that Congress, through its enactment of the ICRA, had already limited tribal customary law by imposing the series of individual rights and the possibility of habeas review—both of which were Anglo-American legal concepts—upon Indian tribes. One federal district court, however (in Alire v. Jackson, 65 F. Supp. 2d 1124, D. Or. 1999), declined to extend federal habeas review to a Warm Springs Indian Reservation tribal council order excluding a nonmember. The tribal council based its exclusion on the fact that the petitioner had been convicted of child abuse and had been employed as a caregiver to children on that reservation.
Others have sought habeas review of tribal court decisions in matters resulting in civil fines. In Moore v. Nelson, 270 F.3d 789 (9th Cir. 2001), a Yurok Indian who had violated a tribal court order not to harvest timber on the Hoopa Valley Reservation sought review of that court’s order to impound his logging equipment and fine him over $18,000. The Ninth Circuit refused to grant the petition, emphasizing that the petitioner had never been criminally prosecuted or sentenced and never subjected to detention of any kind. Similarly, in Shenandoah v. Halbritter (366 F.3d 89, 2nd Cir. 2004, cert. denied, 125 S. Ct. 1824, 2005), the Second Circuit refused to grant habeas review to a petitioner who claimed her house had been condemned by the Oneida Indian Nation in retaliation for her political activities. In contrast to Poodry, the court held that the action taken against the petitioner’s home did not amount to a restraint on liberty sufficient to invoke the ICRA habeas provisions.
MATTHEW L. M. FLETCHER
References and Further Reading
Cases and Statutes Cited
See also Barron v. Baltimore, 7 (U.S.) 243 (1833); Bill of Rights: Structure; Habeas Corpus: Modern History; Plenary Power Doctrine; Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)