Indian Civil Rights Act

From Wikipedia, the free encyclopedia

The Indian Civil Rights Act (ICRA), was enacted by Congress in 1968 as Title II of the 1968 Civil Rights Act. Portions of the ICRA that substantially mirror the Bill of Rights are popularly referred to as the "Indian Bill of Rights." The purpose of the ICRA is to extend many of the constitutional protections of the Bill of Rights to individuals under the jurisdiction of Indian tribal governments. In order to preserve certain aspects of tribal government and sovereignty, some of the aspects from the original Bill of Rights were modified or omitted.

Contents 1 Background 2 Indian Civil Rights Act of 1968 (25 U.S.C. §§ 1301-03) 3 Protecting Tribal Culture 4 Enforcement 5 References

[edit] Background

In 1896, the Supreme Court, in the case of Talton v. Mayes, decided that, since tribal sovereignty flowed from a time immemorial and tribes had not participated in the drafting of, or consented to, the United States Constitution, the individual rights protections that limited federal, and later, state governments, did not apply to tribal governments. In doing so the Court reaffirmed earlier decisions such as Cherokee Nation v. Georgia (1831) that labeled Indian tribes as "domestic dependent nations," whose sovereignty derived not from federal or state authority, but flowed from inherent tribal sovereignty that had never been extinguished.

In 1961, the Senate Subcommittee on Constitutional Rights began an investigation of constitutional rights in Indian Country by sending out 2000 questionnaires to persons familiar with Indian tribes. This was followed by a series of hearings in states with relatively large tribal populations that took place over several years. Judicial concern over civil rights violations by tribal courts in criminal cases came to a head when the Ninth Circuit decided Colliflower v. Garland (1965). There, the Gros Ventre tribal court sentenced a woman to five days in jail for failure to remove her cattle from land leased to another person. The Ninth Circuit took jurisdiction over the case even though the events took place on the reservation and the parties were all tribal members on the theory that the federal government had funded the tribal jail. Likely, the court took the case because the tribal court had neither allowed Ms. Colliflower to have an attorney nor confront witnesses against her, serious civil rights violations. Normally, federal and state courts would not have had jurisdiction over these internal tribal matters.[1]

To address the concerns of individual constitutional rights, in 1968 Congress added the Indian Civil Rights Act as Title II of the 1968 Civil Rights Act.

[edit] Indian Civil Rights Act of 1968 (25 U.S.C. §§ 1301-03)

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

1. 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;

2. 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;

3. Indian court means any Indian tribal court or court of Indian offense.

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

1. 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;

2. 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;

3. subject any person for the same offense to be twice put in jeopardy;

4. compel any person in any criminal case to be a witness against himself;

5. take any private property for a public use without just compensation;

6. 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;

7. 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 and [1] a fine of $5,000, or both;

8. 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;

9. pass any bill of attainder or ex post facto law; or

10. 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.[2]

[edit] Protecting Tribal Culture

Specific provisions in the final version of the ICRA strongly imply that Congress intended to preserve as much of tribal culture as possible. Congress left out a provision equivalent to the Establishment Clause in order to preserve the rights of tribes to form and maintain theocratic government structures if they wished, and as some tribes had. Even in the area of criminal procedure, the Senate subcommittee explicitly questioned whether imposition of certain criminal procedures would injure tribal culture or significantly impact the tribal governmental capability. On the question of whether Indian tribes should be obligated to provide attorneys to indigent defendants, the subcommittee appeared particularly concerned that Indian tribes did not have the financial capacity to fund public defender offices. The Department of Justice also testified that there were few attorneys available on reservations and that, since most tribal prosecutions dealt with tribal customary and traditional law, attorneys were not necessary.[3]

[edit] Enforcement

Although enacted into law in 1968, there are currently no provisions for enforcement of the ICRA by any branch or organization of the federal government, including the United States Department of Justice, or by any tribal organization.[4] To provide a mechanism for enforcement Sen. Groton Slade of Washington introduced a bill, S.2298, the Indian Civil Rights Enforcement Act (ICREA) on July 14, 1998. The ICREA will grant jurisdiction to the U.S. district courts in any civil rights action alleging a failure to comply with rights secured under the ICRA. A summary of the ICREA from the Library of Congress reads:

"Permits an aggrieved individual or the Attorney General to bring an action in a U.S. district court for a declaratory judgment or equitable relief against an Indian tribe, upon exhaustion of remedies in a tribal court of appropriate jurisdiction (if any), to seek compliance with such rights as are timely and reasonable. Provides for the district court to adopt any findings of fact made by the tribal court (if any) with respect to the action, unless it determines that the tribal court:

(1) did not operate independently from the legislative or executive authority of the tribe;

(2) was not authorized to determine matters of law and fact or did not fully determine those matters;

(3) permitted a person or entity to assert a defense of immunity in a declaratory action or an action to seek equitable relief;

(4) failed to resolve the merits of the factual dispute;

(5) employed a fact finding procedure that was not adequate to afford a full and fair hearing;

(6) did not adequately develop facts that are material to the case;

(7) failed to provide a full, fair, and adequate hearing; or

(8) made factual determinations that are not fairly supported by the record.

Requires the district court, if it finds that such a condition applies, to conduct a de novo review of the allegations contained in the complaint."[5]

As of July 2006, this bill was still before the Senate Committee on Indian Affairs.

[edit] References

Tribal Court Clearinghouse[6]

Indian Bill of Rights, Matthew L.M. Fletcher, Michigan State University, College of Law[7]