Indian Civil Rights Act of 1968

Events before passage of ICRA

The US Supreme Court had made clear that tribal internal affairs concerning tribal members' individual rights were not covered by the Fifth Amendment to the US constitution. However, the tribes were ultimately subjected to the power of Congress and the Constitution. The court case Talton v. Mayes helped establish the principles. There were other court cases over the following years to continue the thoughts "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."

Later, in the 1960s, Congress held a series of hearings on the subject of the authority of tribal governments. These hearings told about the abuses that many tribal members had endured from the "sometimes corrupt, incompetent, or tyrannical tribal officials." In response, the Indian Civil Rights Act was enacted.

Provisions of the Indian Civil Rights Act

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 witness against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of a 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 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.

The act also requires tribal courts to afford due process and other civil liberties. Also, Native American courts try to provide a setting similar to that of a US courtroom, which is familiar to lawyers. That aided the attorneys, and it helped divert non-Indian ridicule and established the view that tribal courts were legitimate courts. Tribal courts adopted rules of evidence, pleading, and other requirements similar to those in state and federal courts.

The ICRA incorporated many constitutional protections but it modified others or did not include them at all. "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 jury trial in civil cases, or the right of indigents to appointed counsel in criminal cases." The provisions were excluded because the government recognized the different political and cultural status of the tribes.

Even though the federal government respected their individuality in this respect, the establishment of the ICRA caused the tribal governments to "mirror" modern American courts and procedures.

The impact of ICRA was greatly limited by the Supreme Court by the Santa Clara Pueblo v. Martinez court case (1978). Martinez involved a request to stop denying tribal membership to those children born to female (not male) tribal members who married outside of the tribe. The mother who brought the case pleaded that the discrimination against her child was solely based on sex, which violated the ICRA. The courts decided that "tribal common-law sovereign immunity prevented a suit against the tribe." Martinez ultimately strengthened tribal self-determination by further proving that generally, the federal government played no enforcement role over the tribal governments.