Without a Remedy: The Effectiveness of the Indian Civil Rights Act
Individual rights are heavily valued in America. American citizens can feel secure that anywhere they travel in the United States their individual liberties and rights, enshrined in the Constitution, will (usually) be upheld. If those rights are violated, constitutional case law provides citizens with various forms of remedies for restitution.
Native American tribes complicate this dynamic, at least for tribal members. Even though Congress may exercise broad plenary control regarding tribal power decisions, tribes still retain some of their inherent tribal sovereignty. For example, tribes may still try tribal members and have complete control over membership decisions. In Talton v. Mayes, the Supreme Court found that tribal power predates the Constitution and thus the Bill of Rights did not apply to tribes in their tribal court decisions involving tribal members. This line of reasoning was continued in subsequent Supreme Court decisions. This protected tribal sovereignty, which has slowly been whittled away by subsequent Supreme Court decisions, has also left open the possibility that tribal courts could violate the civil rights of tribal members.
During the 1960s, congress held a series of hearings regarding “abuses that some tribal members were enduring at the hands of sometimes corrupt, incompetent, or tyrannical tribal officials.” In response to these hearings, Congress passed the Indian Civil Rights Act, which applied most of the Bill of Rights to Indian Tribes. The statute enumerated ten rights resembling “provisions in the United States Constitution’s first, fourth, fifth, sixth, and eighth amendments, and the equal protection and due process provisions of the14th amendment.” Noticeably absent from the statute; however, were an establishment clause, any right to counsel, right to civil jury trial and grand jury indictment, and a right to bear arms. The differences between the rights enumerated in the ICRA from the Bill of Rights show a Congressional intent to respect tribal traditions and budgetary concerns.
For a decade federal courts enforced the ICRA in civil and criminal cases on the reservations. Sometimes even applying the due process and equal protection clauses to purely intra-tribal matters such as tribal decisions regarding election procedures and tribal membership criteria. However, in 1978, the Supreme Court’s decision in Santa Clara Pueblo v. Martinez would end most federal litigation regarding the ICRA and render the law mostly ineffective.
In Santa Clara Pueblo, a female tribal member asked for injunctive and declaratory relief challenging a tribal ordinance that denied tribal membership to children of women who married outside of the tribe, but still allowed children of male members who married outside of the tribe to attain tribal membership. While this would seem to be a clear violation of the equal protection clause of the ICRA, the Supreme Court found that injunctive and declaratory relief could not be granted because the ICRA did not expressly allow these remedies. Longstanding Supreme Court precedent provides that Native American tribes may invoke sovereign immunity to dismiss suits against the tribe. In order to abrogate this immunity and open a tribe up to suit, Congress must expressly state its intent to waive tribal sovereign immunity unequivocally. The ICRA only offered habeas corpus reviews as a remedy, and thus the Supreme Court found that the ICRA could only be applied to illegal detentions. The ICRA was therefore basically rendered ineffective and tribal members would be without a remedy when tribal governments and courts violated their due process and equal protection rights.
One question that arose after Santa Clara Pueblo was whether the problem Congress had hoped to address with the ICRA actually existed. How many tribes actually violated due process and equal protection rights of their tribal members? A decade after Santa Clara Pueblo, Congress held a series of hearings in five cities regarding the effectiveness of the ICRA. At a the hearing held in Phoenix, Arizona, the United States Department of Justice detailed 71 complaints and 98 violations of the ICRA from the years 1978 to 1988. These violations include tribes revoking membership and property from tribal members in retaliation for members complaining about tribal practices, taking children away from parents without due process, and tribal councils literally overruling tribal appellate court decisions, along with many more substantial violations of tribal members’ civil rights. The tribal members mentioned in this report lacked legal recourse because they were not illegally detained.
Luckily, since the Congressional hearings, there has been a recent movement by some tribes towards adopting some of the ICRA’s provisions. Tribal courts have used the ICRA to reverse the removal of tribal council members, reverse tribal banishment decrees, required employees to be provided representation during termination hearings, required evidence found during unlawful searches and seizures be excluded from introduction into evidence, and struck down or enjoined enforcement of ordinances for violating equal protection, due process, and the right to free exercise of religion. In fact, examples of tribes applying certain rights enumerated in the ICRA are too numerous to list here. While this is certainly an encouraging development, there have not been any empirical studies showing how many of the 562 tribes in the United States have adopted actually civil rights protections. Congress never commissioned another comprehensive report on this subject, and many tribal court decisions are not published, making it very hard to get a sense of how many tribes have actually chosen to protect their members’ civil rights. Additionally, stories still surface of tribes that grossly violate their members’ civil rights. It is therefore impossible to gauge whether tribal civil rights abuses are still a large problem.
Unless Congress changes the language of the ICRA to include monetary or injunctive remedies, tribal members will have to rely on the willingness of tribes to voluntarily adopt the ICRA or similar civil rights protections. Otherwise, these tribal members will be without legal recourse when their rights are violated.
 U.S. Comm. Civil Rights, 102nd Cong., Rep. on the Indian Civil Rights Act 3 (Comm. Print 1991).
 Id. at 4.
 Stanley I. Kutler, Dictionary of American History 264 (Charles Scribner’s Sons, 3rd ed. 2003).
 U.S. Comm. Civil Rights, 102nd Cong., Rep. on the Indian Civil Rights Act 5 (Comm. Print 1991).
 25 U.S.C.§§ 1302(a).
 U.S. Comm. Civil Rights, 102nd Cong., Rep. on the Indian Civil Rights Act 5 (Comm. Print 1991).
 Rebecca Tsosie et al., American Indian Law: Native Nations and the Federal System 413 (6th ed. 2010)
 Id. (citing Wounded Head v. Tribal Council of Oglala Sioux Tribe, 507 F.2d 1079 (8th Cir. 1975); Slattery v. Arapaho Tribal Council, 298 F. Supp. 26 (D. Ariz. 1969)).
 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 52 (1978).
 Id. at 70.
 Id. at 58 (citing Turner v. United States, 248 U.S. 354, 358 (1919)).
 United States v. King, 395 U.S. 1, 4 (1969) (citing United States v. Sherwood, 312 U.S. 584)).
 25 U.S.C. §§ 1303.
 Santa Clara Pueblo, 436 U.S. at 71.
 U.S. Comm. Civil Rights, 102nd Cong., Rep. on the Indian Civil Rights Act ii (Comm. Print 1991).
 Enforcement of the Indian Civil Rights Act: Hearing Held in Phoenix, AZ, Before the United States Comm. on Civil Rights, 100th Cong. 132-33 (1988) (Letter from James P. Turner, U.S. Department of Justice, to William J. Howard, U.S. Commission on Civil Rights, Jan. 24, 1989, re Allegations of ICRA Violations Post Santa Clara Pueblo v. Martinez).
 Id. at 135.
 Enforcement of the Indian Civil Rights Act: Hearing Held in Washington, D.C., Before the United States Comm. on Civil Rights, 100th Cong. 156 (1988) (Sharon Sehmickle and Roger Buoen, Indian Courts: Islands of Injustice, Minneapolis Star and Tribune, January 5, 1986).
 Enforcement of the Indian Civil Rights Act: Hearing Held in Phoenix, AZ, Before the United States Comm. on Civil Rights, 100th Cong. 137 (1988) (Letter from James P. Turner, U.S. Department of Justice, to William J. Howard, U.S. Commission on Civil Rights, Jan. 24, 1989, re Allegations of ICRA Violations Post Santa Clara Pueblo v. Martinez).
 Mark D. Rosen, Multiple Authoritative Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L. Rev. 479, 522 (2000) (citing Coalition for Fair Gov’t II v. Lowe, 23 Indian L. Rep. 6181 (Ho-Chunk Tribal Ct. 1996)).
 Id. (citing Burns Paiute Indian Tribe v. Dick, 22 Indian L. Rep. 6016, 6017 (Burns Paiute Ct. App. 1994)).
 Id. (citing Johnson v. Mashantucket Pequot Gaming Enter., 25 Indian L. Rep. 6011 (Mashantucket Pequot Ct. App. 1996)).
 Id. (citing In re D.N., 22 Indian L. Rep. 6071 (Hopi Child. Ct. 1995)).
 Id. (citing Conroy v. Bear Runner, 16 Indian L. Rep. 6037, 6039 (Oglala Ct. App. 1984)).
 Id. (citing Rough Rock Cmty. Sch. v. Navajo Nation, 22 Indian L. Rep. 6162 (Navajo 1995)).
 Id. (citing Kavena v. Hamilton, 16 Indian L. Rep. 6061, 6062 (Hopi Tribal Ct. 1988)).
 Robert J. Mccarthy, Civil Rights in Tribal Courts: The Indian Bill of Rights at Thirty Years, 34 Idaho L. Rev. 465, 498-504 (1998).
 Klint A. Cowan, International Responsibility for Human Rights Violations by American Indian Tribes, 9 Yale Hum. Rts. & Dev. L.J. 1, 41 (2006).
 Harold Monteau, Indian Civil Rights Act Has Done Nothing for Individual Indians’ Rights, Indian Country Today (July 2, 2012), http://indiancountrytodaymedianetwork.com/2012/07/02/indian-civil-rights-act-has-done-nothing-individual-indians-rights (citing case where a tribal member was denied counsel, prosecutor acted as defense counsel, and tribe failed to read charges against him until day of trial); Tom Robertson, Tribal Justice – But not for All, Minnesota Public Radio (April 2001), http://news.minnesota.publicradio.org/projects/2001/04/brokentrust/robertsont_tribaljustice-m/index.shtml (reporting claims by tribal members of exclusion from reservation without any hearing, lack of separation of powers between judicial, legislative and executive branches of tribal government, leading to injustices); Eric Reitman, An Argument for the Partial Abrogation of Federally Recognized Indian Tribes’ Sovereign Power over Membership, 92 Va. L. Rev. 793, 818 (2006) (citing evidence that 2,000 tribal members in California have been disenrolled from their tribes without cause).