Indian Civil Rights Act

The Indian Civil Rights Act of 1968 (ICRA) (see Federal Laws), 25 U.S.C.§§ 1301-1303 (ICRA), provides as follows:

§ 1301. Definitions: For purposes of this subchapter, the term

"Indian tribe" means any tribe, band, or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government.
"powers of self-government" means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians;
"Indian court" means any Indian tribal court or court of Indian offense, and.
"Indian" means any person who would be subject to the jurisdiction of the United States as an Indian under section 1153, title 19, United States Code, if that person were to commit an offense listed in that section in Indian country to which that section applies.

§ 1302. Constitutional Rights: No Indian tribe in exercising powers of self-government shall:

make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;
violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;
subject any person for the same offense to be twice put in jeopardy;
compel any person in any criminal case to be a witness against himself;
take any property for a public use without just compensation;
deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense;
require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year or a fine of $5,000 or both;
deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;
pass any bill of attainder or ex post facto law; or
deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.

§ 1303. Habeas corpus

The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.

Since its enactment in 1968, the ICRA it has been amended twice. It was first amended in 1986 to increase the sentencing limitations in section 1302(7). This provision originally limited tribes to imposing sentences for a single offense to no greater than six months imprisonment or a fine of $500 or both. In 1986, this provision was amended (as part of a federal drug and alcohol prevention act) to "in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year or a fine of $5,000 or both".

The ICRA was amended again in 1991 in order to overturn the U. S. Supreme Court decision in Duro v. Reina, 495 U.S. 676 (1990). The Duro decision held that tribal courts did not have criminal jurisdiction over non-member Indians. The United States Congress overturned the Duro decision (the so-called Congressional "Duro-fix") by added language the language "and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians" to the definition of "powers of self-government". This Congressional Duro-fix restored tribal court criminal jurisdiction over all Indians (members and non-members).

For ten years after its passage, the general perception was that ICRA gave the federal court broad powers to hear and decide claims of civil rights violations by tribal governments. This changed dramatically, however, in 1978 with the U. S. Supreme Court decision in Santa Clara Pueblo v. Martinez, 439 U.S. 49 (1978).

During the ten-year period from the date of the passage of the Indian Civil Rights Act in 1968 to the Martinez Decision in 1978, federal courts heard approximately 80 cases involving the application of the Indian Civil Rights Act. These cases covered many subjects including tribal election disputes, reapportionment of voting districts on Indian reservations ("one man, one vote"), tribal government employee rights; land use regulations and condemnation procedures; criminal and civil proceedings in tribal courts; tribal membership and voting; tribal police activities, conduct of tribal council members and council meetings, and standards for enforcing due process of law and equal protection of the laws in tribal settings.

During this ten-year period, the federal courts devised rules of interpretation, including:

While the ICRA is generally patterned after the Bill of Rights, the same language does not necessarily have to be interpreted in the same way;
The ICRA does not require that Indians and non-Indians always have to be treated identically by tribal governments, that is, different treatment is permitted and justified in certain circumstances (for example, tribal membership requirements);
Tribal customs, traditions, and culture must be considered in interpreting and applying the ICRA; and
Tribal remedies must first be exhausted before a dispute can be heard in federal court.

Santa Clara Pueblo v. Martinez, 439 U.S. 49(1978).

Santa Clara Pueblo is located in northern New Mexico and has about 1200 members living on it along with about 150-200 non-members. In 1939 the tribal council of the Pueblo adopted an ordinance that extended tribal membership to the children of male members who married non-members but denied membership to children of female members who married non-members. The tribe justified the ordinance on the basis of its patriarchal traditions plus the economic need to restrict tribal enrollment.

Julia Martinez, a full-blooded member of the Pueblo, married a Navajo. Even though their children were raised in the Pueblo, spoke the Tewa language, and continued to live there, because of the 1939 ordinance they were denied membership in the tribe. After unsuccessfully attempting to get the Pueblo to change the ordinance, Mrs. Martinez sued the tribe and its governor in federal court. She claimed that the ordinance denied her and her children equal protection of the laws as guaranteed by the ICRA.

The issue was whether or not the ICRA prohibits an Indian tribe from setting membership criteria that discriminate against women. It is a difficult question: equal rights for women on one side; a tribe’s rights to set membership criteria on the other side.

The Supreme Court in Martinez never actually decided the merits of the case. It disposed of the case on a jurisdictional basis; that is, that the ICRA does not give federal courts broad jurisdiction to review tribal government actions in Indian country. Thus, Ms. Martinez’s challenge to the tribal ordinance could not go forward. In reaching this conclusion, the Court noted that there were two purposes that Congress had in mind in enacting the ICRA:

Protection of individual civil rights in Indian country. It did this by prohibiting tribal governments from taking actions that might interfere with individual freedoms.
Encouragement of tribal self-government. It did this by implicitly recognizing the importance of tribal governments on reservations, reaffirming the idea of sovereign immunity as applied to Indian tribes, and giving tribal institutions the principal responsibility for resolving disputes over civil rights.

Notice that the only section of the ICRA that actually mentions a "court of the United States," is §1303, which gives people held in custody by an Indian tribe a right to go to federal court to challenge that detention. In Santa Clara Pueblo v. Martinez 439 U.S. 49 (1978) the Supreme Court interpreted ICRA as not giving the Federal Court any power to review any complaints of ICRA violations by a tribal government except those arising as writ of habeas corpus actions--complaints of unlawful detention raised by individuals being held in tribal custody. The decision held that violations of all the other rights guaranteed under the ICRA, including freedom of speech and equal protection rights, fell under tribal jurisdiction, and thus could only be brought in tribal court.

A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country reveals that federal funding directed to Native Americans through programs at these agencies has not been sufficient to address the basic and very urgent needs of indigenous peoples. Among the myriad unmet needs are: health care, education, public safety, housing, and rural development. The United States Commission on Civil Rights finds that significant disparities in federal funding exist between Native Americans and other groups in our nation, as well as the general population. Among immediate requirements for increased funding are: infrastructure development, without which tribal governments cannot properly deliver services; tribal courts, which preserve order in tribal communities, provide for restitution of wrongs, and lend strength and validity to other tribal institutions; and tribal priority allocations, which permit tribes to pursue their own priorities and allow tribal governments to respond to the needs of their citizens.

The Indian Civil Rights Act: A Report of the United States Commission on Civil Rights (June 1991) can be obtained from the United States Commission on Civil Rights by emailing them at: publications@usccr.gov (Please include the following information in your message: Name, Mailing Address, Title(s) of publication(s) you want).

Enforcement of the Indian Civil Rights - Act Hearing Held in Portland, Oregon March 31, 1988 U.S. Commission on Civil Rights.