Wednesday, June 13, 2012

The Indian Civil Rights Act at FORTY - A Mostly Toothless Law Trusting Tribes to Act Responsibly

Here's a quick review of the book  The Indian Civil Rights Act at Forty by Kristen A. Carpenter, Matthew L.M. Fletcher, and Angela R. Riley (eds.).  Because there was no enforcement placed into this act, Native American citizens have been abused by their tribes, stripped of citizenship, banished without cause.   We simply need to add enformcement.

The past six decades have seen a revolution which advanced the human rights of indigenous peoples worldwide. The Indian Civil Rights Act at Forty evaluates one vital part of that revolution, the effectiveness of the Indian Civil Rights Act of 1968 in promoting individual rights and Native American sovereignty. Together, this set of essays argues that the extension of rights to the American Indian tribes has adapted well, so long as each tribe has been free to interpret the Act within its own traditions.


During the 1950’s and 1960’s the former assimilationist policies of the United States were eroding as colonialism was dying worldwide. The Indian Civil Rights Act of 1968 (ICRA) extended individual rights onto the tribal reservations. The Act provided for a variety of guarantees which track those of the Bill of Rights: freedom of speech, due process, equal protection, a speedy trial and others.

For readers unfamiliar with this area of law, the United States Constitution does not apply by its own terms to the Indian tribes, whose existence antedates the Constitution. Federal statutes apply to the tribes because of the powers of Congress under the Indian Commerce Clause of the Constitution.

Like most laws, ICRA had unintended consequences. But unlike many laws, these were for the better. The original intention was to protect individual rights on the reservations. But, with the exception of federal habeas corpus relief, ICRA gave the federal and state courts no enforcement authority. That gap opened the way for tribal courts.

In 1978 the U.S. Supreme Court rejected an equal protection challenge to a tribal rule that permitted enrollment of children whose fathers married outside the tribe, but not of children whose mothers married outside the tribe. Santa Clara Pueblo v. Martinez rested on the principle that ICRA could not be enforced by a private cause of action in federal court; as to such questions, the tribes remained sovereign.

After Santa Clara Pueblo, interpretation of ICRA was left almost exclusively to the tribal courts. Thus the tribal courts have gained four decades of valuable experience in applying ICRA under their own tribal laws and customs. The application has ranged from outright adoption of federal law to thoughtful adaptation of tribal customs and beliefs. But the decisionmakers in this process have been the Indian tribal courts.

Together, the fifteen authors have done the essential spadework; they have tracked down scores of tribal constitutions, statutes, and case law that apply to ICRA. To the extent that numbers can convey scholarship, there are about 1,600 footnotes over about 77 pages. The sources include tribal authorities from the Navajo Nation to Bill Moore’s Slough, a settlement in Alaska. So apart from its effective analyses, the book becomes valuable just as a database. This intensive research represents a great deal of time saved for the academic and the practitioner.

All the authors who analyzed available tribal authorities cited the difficulty of generalization. This diversity is a reasonable result of possibly hundreds of different tribal courts. [*288]

The Indian Civil Rights Act at Forty offers one chapter about the role of the U.S. Department of Justice and eleven more which cover five substantive areas. Here are the chapters and the thesis of each. I can offer only a glimpse of the rich variety of viewpoints presented by this book.

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