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.


White Buffalo said...

Do you have an ISBN for the book?

Anonymous said...

please go to that link and help our cause.

Erick Rhoan said...

ISBN 9780935626674

White Buffalo said...

Thanks Erick

White Buffalo said...

Have to read the book, but I think I agree with Eric. Eric posted on his Blog some comments about the issue. One thing I do understand is the people who wrote it are looking at ICRA from an external point of view with all of their interviews and materials coming from the tribes, government, and court documents.

If we were allowed our civil rights as Americans, and were allowed to have our cases heard in court then there would be undisputed evidence that could be used by the US Congress who writes the laws to fix the laws.

Then if we had those legal decisions we would have that leg to stand on and be able to legally petition congress to revisit. Then the loopholes in the sovereignty laws could be closed and disenrollment issues could be heard.

Nobody talks to much about this aspect from this point of view, but this is another reason why the courts will not hear disenrollment cases. It is simple without precedent then there is no need for a change in the law.

Sure one could argue that the Martinez and San Pueblo, not too sure about San Pueblo, addressed membership issues but anyone who is familiar with current disenrollment issues knows that these two cases were broadly interpreted by the courts, so that they could pass the issue on without having to create president.

We also know that these two cases were a misrepresentation of the law, and that these new rulings like in our case defeats the purpose of PL 280. What the courts told us was that it was a legislative matter. As I have already mentioned Congress may act on court precedent when a law is deemed unconstitutional, but rarely will congress change the law without said president.

There is another couple ways to change laws one is to unite at the grassroots level and inform and spread the issue to the populous, so that it becomes a national issue that cannot be ignored, thus forcing congress to act on the will of the people. It is not unheard of, remember, 1964 and Dr. M.L. King and the passage of the civil rights act. That passed after decades of mistreatment since the civil war a group of people lead by King started the movement in the 50s; this is the short version, and look what happened. The law was changed.

Another way in changing the law is by changing our representatives who are in-agreement with us, and who will work to change the law just as was done with the original ICRA was written. Nobody said that fighting the corrupt and the influence of the corrupt would be easy, but culture, history, and identity are worth the effort. This is just something to think about and discuss with others. I still walk with you my brothers and sisters.

White Buffalo said...

What I wanted to say when I wrote

"Another way in changing the law is by changing our representatives who are in-agreement with us"

was change those representatives who are not in-agreement with us, and replace them with those who understand the issues and our position regarding civil rights and due process