Indian Civil Rights Act – Page 7

Harold Monteau’s recent op-ed on ICRA — labeling it a “dismal failure” in protecting the rights of individual Indians — is thought-provoking, to say the least. While I agree generally, I have two points in response, one of which is probably irrelevant.

First, to say that Congress intended ICRA to protect individuals from the arbitrary and capricious acts of tribal governments is a half-truth. Sen. Ervin intended ICRA to be a tool of civilizing, or assimilating, or whatever the term is when a more powerful government uses its power in an effort to make a less powerful government in its own image (absent the power, of course). In this regard, it was an almost instantaneous success. As David Getches wrote in the 1978, ICRA westernized ( actually, I prefer Americanized; others say “more Anglo”) tribal courts even where those courts didn’t see ICRA as legitimate law. Now tribal courts, with very few exceptions, are westernized … where they exist. Tribal governments without tribal courts are practically by definition not westernized governments (I don’t know what they are, because many don’t really act like governments at all, while many do). I think ICRA will fade away over time as tribal governments adopt their own version of laws that protect individuals, but it’ll take a while.

I agree that Monteau is probably right that ICRA hasn’t been a great success at guaranteeing individual rights in Indian country. I think his example, the Romero case, is probably an outlier case. He’s in jail still only because he was illegally in jail in the first place, says Monteau. Yes, but his tribal court conviction was struck under ICRA eventually (once the feds intervened and the tribal council backed down). It’s not perfect, and maybe it’s even tragic, but still unusual. People like Barbara Creel and Harold Monteau worked to limit the damage.

Second, where ICRA fails is where tribal governments fail. Those tribal governments that don’t have effective justice systems and those tribal governments that don’t effectively waive immunity in tribal courts are the tribal governments that make ICRA toothless. Disenrollments, railroaded criminal convictions, bad business deals, political firings of tribal government employees, whatever the case may be — many of these abusive tribal actions are unreviewable under ICRA or any statute.

I commend Monteau for highlighting ICRA, and I tend to agree with him that ICRA can be relatively easily circumvented (or ignored) by tribal governments intent on being bad actors.

Fletcher on NAICJA/Getches’ “Indian Courts and the Future”

June 7, 2012Matthew L.M. Fletcher

I posted my University of Colorado Law Review symposium paper, “Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisited.” Here is the abstract:

This paper comes out of the University of Colorado Law Review’s symposium issue honoring the late Dean David H. Getches. It begins with Dean Getches’ framework for analyzing Indian courts. I revisit Indian Courts and the Future, the 1978 report drafted by Dean Getches, and the historic context of the report. I compare the 1978 findings to the current state of Indian courts in America. The paper focuses on the ability of Indian courts to successfully guarantee fundamental fairness in the form of due process and the equal protection of the law for individuals under tribal government authority is uniquely tied to the legal infrastructure available to the courts. Congress tried to provide the basic framework in the Indian Civil Rights Act, and many of the most successful tribal justice systems have borrowed from ICRA or developed their own indigenous structure to guarantee due process and equal protection. I argue that ICRA is declining in importance as Indian tribes domesticate federal constitutional guarantees by adopting their own structures to guarantee fundamental fairness.

The Colorado Law Library recently archived Indian Courts and the Future and its two appendices (here and here). Check them out. The Indian law portion of the symposium is here.

Paul Spruhan on the Meaning of Due Process at Navajo

April 7, 2012April 7, 2012Matthew L.M. Fletcher

Paul Spruhan (Navajo DOJ) has posted his chapter, “The Meaning of Due Process in the Navajo Nation.” This is a chapter from “The Indian Civil Rights Act at Forty.”

Here is the abstract:

The article is a contribution to the Indian Civil Rights Act at Forty, and describes the Navajo Nation’s approach to the concept of due process under the Indian Civil Rights Act and the Navajo Bill of Rights. It traces the evolution of the Navajo Supreme Court’s views on due process from direct application of federal definitions to the development of a unique Navajo doctrine informed by federal constitutional doctrine, but ultimately reflecting Navajo values of fairness. Based on the discussion of the development of Navajo due process, the article suggests the Navajo Nation’s approach in synthesizing federal doctrine with tribal values can be a model for other tribes grappling with developing modern court systems that emphasize jurisprudential sovereignty through the development and application of unique tribal law.

Fletcher on Free Speech and Tribal Law

March 15, 2012Matthew L.M. Fletcher1 Comment

My chapter, “Resisting Congress: Free Speech and Tribal Law,” from our book, The Indian Civil Rights Act at Forty.

Here is the abstract:

Congress codified the unsettled tension between American civil rights law and American Indian tribal law, customs, and traditions in American Indian communities by enacting the Indian Civil Rights Act (ICRA) in 1968. Concerned that individual rights were receiving short shrift in tribal courts and by tribal governments,Congress chose to apply a modified form of the Bill of Rights on tribal governments. In other words, Congress chose to impose American legal norms on Indian governments in order to protect those under tribal jurisdiction.As it had done previously in statutes such as the Indian Reorganization Act, Congress affirmatively sought to displace tribal law — and all the attendant customs and traditions, as well as Indian values — with American law. Ironically, after the Supreme Court interpreted ICRA in 1978, this law could only be interpreted and enforced by tribal courts. Tribal law and American civil rights law have been at odds in many tribal communities ever since, as tribal voters, legislatures, and courts have struggled with how (and whether) to apply American civil rights law in Indian country.

In this chapter, I explore several questions relating to tribal courts, tribal governments, and the Indian Civil Rights Act. For example, do tribal decision makers (i.e., voters, legislatures, and especially courts) deviate from the state and federal government and court interpretations of the Bill of Rights in applying ICRA; and if so, how much and in what way? Do tribal decision makers apply or incorporate tribal law, customs, and traditions into their decisions relating to civil rights under ICRA (and tribal laws that incorporate ICRA’s provisions); and if so, how? Are tribal decision makers truly bound by the provisions of the ICRA?The last question begs a final question: Does Congress have authority to force tribal decision makers how to decide civil rights disputes?

Kristen Carpenter on Individual Religious Freedoms in American Indian Tribal Constitutional Law

March 12, 2012Matthew L.M. Fletcher

Kristen Carpenter has published her essay, “Individual Religious Freedoms in American Indian Tribal Constitutional Law” in our new book, The Indian Civil Rights Act at Forty (UCLA American Indian Studies Center Publications 2012). It is available on SSRN.

Here is the abstract:

Written on the 40th Anniversary of the Indian Civil Rights Act, this article engages with a prominent critique of individual rights in tribal communities, namely that they effectuate the ‘assimilation’ of tribal people, values, and institutions. On the one hand, because American Indian religions emphasize collective values and experiences, this critique is particularly apt in the religion context, and the imposition of individual rights norms recalls the federal government’s historic efforts to destroy tribes by eradicating tribal religious practices. Moreover, in many tribal communities, religion is conceptualized and practiced not in terms of ‘rights’ but rather ‘duties’ to other people, plants, animals, natural features, and the ceremonies themselves. On the other hand, some Indian tribes have historically recognized personal liberties in spiritual practices, and now consider it an obligation of self-government to protect individual interests in religion. This article explores these themes, particularly as they manifest in tribal constitutional law, which reveals a broad spectrum of rights and duties, individual and collective protections. The article also elaborates on several ways that tribes recognize individual rights in the context of tribal culture, namely using tribal custom as a basis for interpreting positive law on individual religious rights, maintaining separate institutions for the resolution of legal disputes about religion, and engaging in constitutional reform to change religious rights provisions that are inconsistent with tribal values. In the final analysis, the article observes that that while many challenges remain, tribal governments often try to facilitate individual and collective interests in religious freedom today.

New Student Scholarship on Federal Court Jurisdiction over Tribal Banishments

January 28, 2012January 26, 2012Matthew L.M. Fletcher1 Comment

Mary Swift has published “Banishing Habeas Jurisdiction: Why Federal Courts Lack Jurisdiction to Hear Tribal Banishment Actions” in the Washington Law Review. The article is available on SSRN here.

Here is the abstract:

The Indian Civil Rights Act (ICRA or ‘the Act’) of 1968 grants members of federally recognized Indian tribes individual civil rights similar to those enumerated in the federal Bill of Rights and Fourteenth Amendment. However, the Act provides only one explicit federal remedy for violations of the rights secured therein: the writ of habeas corpus. The U.S. Supreme Court has refused to read an implied cause of action into the Act. Some federal courts assert habeas jurisdiction to review tribal banishment actions alleged to violate ICRA, but not over disenrollment actions. Tribal banishment means an individual tribal member is cast out from tribal lands and often removed from tribal membership rolls. Tribal disenrollment means an individual tribal member is removed from tribal membership rolls and often denied access to some or all tribal facilities. This Comment argues that federal courts should not assert habeas jurisdiction over tribal banishment actions because: exercising habeas jurisdiction over tribal banishment actions contravenes federal Indian law canons of construction; expansive habeas jurisdiction disturbs the careful balance struck by Congress and the Court between individual rights and tribal sovereignty; declining jurisdiction protects tribes’ sovereign authority to determine their own membership; and the line between banishment and disenrollment is arbitrary because tribes have authority to exclude nonmembers from tribal lands. Though it may leave a few individual tribal members without a remedy to challenge tribal banishment alleged to violate ICRA, such a uniform rule best protects tribal sovereignty, preserves congressional intent, and promotes robust tribal court systems.