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The Indian Civil Rights Act of 1968 applies to the Indian tribes of the United States and makes many, but not all, of the guarantees of the Bill of Rights applicable within the tribes. The Act appears today in Title 25, sections 1301 to 1303 of the United States Code.

Events before passage of ICRA

Long before Indians were recognized by the U.S. government as independent nations, the Bill of Rights was created in order to legally bind the federal and state governments. "But for the over 550 American Indian nations currently recognized by the U.S. government, the Constitution and the Bill of Rights represent a social contract which was created without their representation long after their own social contracts."[1]

These "social contracts" were in no way connected to the federal government, which meant that the federal court system had no jurisdiction over a crime between two Indians on Indian soil. Since neither the Constitution nor the Bill of Rights applied to Native American tribal governments, denying freedom of press and fair jury trials, and performing illegal searches and seizures were common acts within the American Indian communities.[1] This need for an imposition on many of the Native Americans' provisions was the basis for the creation of the Indian Civil Rights Act of 1968.[2]

Before the Indian Civil Rights Act, a tribal member's dislike of a tribal government decision was dealt with in one of two ways; either the tribal member had to accept the decision or he/she had to leave the tribe. Today, leaving the tribe completely is not a necessary option.

Along with the types of punishment, the causes for intratribal disputes have also changed over the years.[1] Progress within tribal communities gave way to differences in religion among tribal members and the rise of tribal casinos. Even though both signified a step in the right direction for American Indians, religion brought friction between tribal members and building tribal casinos initiated quarrels over who would manage each casino, what would be done with the profits, whether to serve alcohol in the casinos and environmental issues. Without an established individual rights system within the tribal government, many tribal members were treated unfairly and many scandals occurred within the tribes.[1]

These disagreements were not under the federal government's control. The U.S. Supreme Court had made clear that tribal internal affairs concerning tribal members' individual rights were not covered bythe Fifth Amendment; however, the tribes were ultimately subject to the power of Congress and the Constitution.[3] The court case Talton v. Mayes helped establish these 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."[3]

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 to these occurrences, the Indian Civil Rights Act was enacted.[3]

Constitutional rights enacted by 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.[4]

This act also requires tribal courts to afford due process and other civil liberties. Along with this, Native American courts try to provide a setting similar to that of a U.S. courtroom which is familiar to lawyers.[5] This not only aided the attorneys; it helped divert outside ridicule and it established the fact that these tribal courts were "real" courts. Tribal courts adopted the rules of evidence, pleading, and other requirements similar to these in state and federal courts.[5]

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."[3] These 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.[3]

The impact of ICRA was greatly limited by the Supreme Court by the Santa Clara Pueblo v. Martinez court case (1978). Martinezinvolved 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."[3] Martinez ultimately strengthened tribal self-determination by further proving that generally, the federal government played no enforcement role over the tribal governments.[6]


  1. ^ a b c d Russell, Steve. "Indian Civil Rights Act (1968)".
  2. ^ Canby Jr., William C. American Indian Law in a Nutshell. St. Paul: West Publishing Co., 2004 pg. 354 - 363
  3. ^ a b c d e f "Indian Civil Rights Act." US History Encyclopedia. © 2006 through a partnership of Answers Corporation.
  4. ^ Canby Jr., William C. American Indian Law in a Nutshell. St. Paul: West Publishing Co., 2004 pg. 354 - 355
  5. ^ a b Wilkinson, Charles. Blood Struggle : The Rise of Modern Indian Nations. Boston: W. W. Norton & Company, Incorporated, 2006. pg. 290.
  6. ^ Murphy, Paul L. Santa Clara Pueblo v. Martinez.


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