Indian Civil Rights Act of 1968

The U.S. Supreme Court had long made clear that although Indian tribes were subject to the dominant plenary power of Congress and the general provisions of the Constitution, tribes were nonetheless not bound by the guarantee of individual rights found in the Fifth Amendment. The most important decision affirming this principle is Talton v. Mayes (1896). Subsequent Supreme Court decisions affirmed the line of reasoning that tribes were not arms of the federal government when punishing tribal members for criminal acts and that Indian tribes were exempt from many of the constitutional protections governing the actions of state and federal governments. In the 1960s, Congress sponsored a series of hearings on the conduct of tribal governments and heard testimony regarding the abuses that some tribal members were enduring at the hands of sometimes corrupt, incompetent, or tyrannical tribal officials. The Indian Civil Rights Act (ICRA) was enacted in response to these revelations.

The most important provisions of ICRA were those that guaranteed (1) the right to free speech, press, and assembly; (2) protection from unreasonable search and seizure; (3) the right of a criminal defendant to a speedy trial, to be advised of the charges, and to confront any adverse witnesses; (4) the right to hire an attorney in a criminal case; (5) protection against self incrimination; (6) protection against cruel and unusual punishment, excessive bail, incarceration of more than one year and/or a fine in excess of $5,000 for any one offense; (7) protection from double jeopardy or ex post facto laws; (8) the right to a trial by a jury for offenses punishable by imprisonment; and (9) equal protection under the law, and due process. ICRA also stipulated that the writ of habeas corpus would be available in tribal court.

While ICRA included many familiar constitutional protections, it either ignored or modified others. The law did not impose the establishment clause, the guarantee of a republican form of government, the requirement of a separation of church and state, the right to a jurytrial in civil cases, or the right of indigents to appointed counsel in criminal cases. Congress excluded these provisions because it recognized the unique political and cultural status of tribes.

The effects of the ICRA were substantial; by requiring tribes to meet certain standards, the law caused tribal judicial systems to mirror mainstream American courts and procedures. While the benefits to individual liberties were laudatory, the effect also homogenized tribal courts, and limited their sentencing powers.

In 1978, the Supreme Court dramatically limited the impact of ICRA in Santa Clara Pueblo v. Martinez. That case involved a request to prevent enforcement of a tribal ordinance denying tribal membership to children of female (but not male) members who marry outside the tribe. The petitioning mother claimed the ordinance discriminated against her child based upon sex and thus was a denial of equal protection and violated ICRA.

The Court held that tribal common-law sovereign immunity prevented a suit against the tribe. It concluded that Indian tribes are required to adhere to the substantial requirements of ICRA, but that in deference to tribal self-government, Congress did not intend for federal courts to oversee compliance with ICRA, except in habeas corpus proceedings or unusual circumstances. Since 1978 and Martinez, those persons who allege noncustodial violations of ICRA are limited to pursuing their claims in tribal forums. Generally federal courts play no enforcement role in any of the provisions of ICRA that don't involve the narrow review of the imposition of incarceration by tribal courts in criminal proceedings.

Proposals to amend the ICRA to provide for more effective enforcement by the federal courts have been made and remain controversial. However, any remedy must balance the rights of the individual tribal members with a respect for tribal sovereignty and self-government.