Abuse of individual Indians at the hands of tribal governments and/or tribal officials- led to the introduction and enactment of the Indian Civil Rights Act of 1968 (ICRA). Unfortunately the ICRA did not contain an effective enforcement mechanism to deter tribal governments from violating the rights of the individual. To reprise an older post, here is a portion of the information AIRRO put together on why we need enforcement of ICRA.
The American Indian Rights and Resources Organization (AIRRO) is a Native American rights organization which is dedicated to the protection, preservation, and enforcement of the human rights of individual Indians through-out United States Indian Country. OP: PLEASE consider supporting AIRRO with your membership, details at the link above.
Earlier this year, the AIRRO submitted information to the OHCHR for use in the Universal Periodic Review of the United States human rights record. AIRRO’s submission highlighted the trend of civil and human rights abuses indigenous people are being subjected to and the United State’s role in creating an environment for such injustices to occur. The AIRRO believes that both the UN and the United States should address the growing number of human and civil rights abuses in Indian Country and work towards the enforcement of previously enacted laws governing Indian civil and human rights.
The most egregious human rights issues that have gripped Indian Country over the last decade include the taking of ones citizenship; the denial of basic rights and freedoms; and the severing of spiritual and cultural ties to ones people and land. In place of actual physical genocide, acts such as disenrollment, banishment and the denial of citizenship are “killing off” generations of Indian people.
Disenrollment is the stripping of one’s citizenship in his or her tribe. Banishment is an act taken against individuals or groups whereby they are barred from entering and/or staying within their tribal reservation or other tribal lands. Denial of membership is an act to keep those eligible for tribal citizenship off the tribal rolls.
Disenrollment (described here, liked being RAPED and having the RAPIST judge you) has been characterized as an act committed by tribal officials “without any concern for human rights, tribal traditions or due process… as a means to solidify their own economic and political bases and to winnow out opposition families who disapprove of the direction the tribal leadership is headed…(It) has tragically become almost commonplace in Indian country, leaving thousands of bona fide Native individuals without the benefits and protections of the nations they are biologically, culturally, and spiritually related to.”
The State is in large part responsible for the growing problem of human rights abuses in Indian Country. Its responsibility lies with the laws it has enacted and the failures of its agencies to carry out the trust responsibility due the individual Indian.
Of note, in 1968, after an investigation by the Constitutional Rights Subcommittee of the Senate Committee on the Judiciary, the Indian Civil Rights Act (ICRA) was passed.
The ICRA was adopted to ensure that tribal governments respect the basic human and civil rights of individual Indians and non-Indians. The ICRA was intended to extend constitutional rights to individual Indians and thereby “protect individual Indians from arbitrary and unjust actions of tribal governments.” Under the ICRA tribal governments were prohibited from enacting or enforcing laws that violate certain individual rights.
Unfortunately, the ICRA failed to include an effective enforcement mechanism: save for a writ of habeas corpus, aggrieved individual(s) were barred from holding the offending tribal government or tribal official(s) accountable for violations of tribal and/or federal law.
The ICRA was further neutered in Martinez v. Santa Clara Pueblo which held that the ICRA, although a federal statute, was not enforceable in federal court. While the Martinez decision did allow for State intervention in limited instances, the Bureau of Indian Affairs (BIA), an agency within the Department of the Interior, has routinely declined to intervene.
The failures of the United States in regards to enforcement of the ICRA led William B. Allen, at the time, a member of the United States Commission on Civil Rights, to point out that no federal money had been spent on the enforcement of fundamental civil rights of American citizens (including the indigenous population) domiciled on reservations since the Martinez decision.
The United States’ failure to address the inherent problems in the ICRA and the additional problems created by Martinez has created an environment whereby tribal officials are allowed to violate the rights of their citizens by ignoring Federal, State and Tribal laws.
The United States can change the environment by providing an efficient enforcement mechanism for the redress of alleged violations of the ICRA and other tribal and/or federal laws enacted to protect and preserve the rights of the individual Indian.
Enforcement could include de novo review of tribal court actions by federal courts of issues involving alleged rights violations. And, in instances where there is no tribal court, individual(s) alleging violations of their human and civil rights could be allowed to file an action in federal court and the federal court shall have jurisdiction to hear the dispute.
Additionally and equally important, tribal and federal officials should not be allowed to invoke immunity from prosecution for alleged rights violations nor shall a tribe’s sovereignty shield its officers, employees, or agents.
The United States must be proactive in addressing the growing number of abuses committed against American Indians. The United States needs to address the policies, programs, and laws governing the rights of its indigenous people. The United States must also take action to change the current environment, an environment it created, which allows for and fosters the wholesale denial and abolishment of basic rights.