The Indian Civil Rights Act, 25 USC §1301 et seq., was passed by Congress in 1968. The Act extended many of the protections of the Bill of Rights to tribes for the first time and coincided with the end of the termination era and a greater emphasis on tribal sovereignty. Section 1302 of the Act expresses various constitutional rights which “no Indian tribe in exercising its powers of self-government” shall infringe. Among the ten listed prohibitions are putting a person twice in jeopardy for a crime; making or enforcing laws prohibiting the free exercise of religion; denying a six-person jury trial to a defendant charged with a crime punishable by imprisonment; and denying equal protection or due process to any person within the tribe’s jurisdiction. Two of the most notable omissions from the list are provisions prohibiting the establishment of religion and the requirement of a free attorney for an indigent accused defendant. (Some tribes do, however, provide free counsel to indigent defendants, and the new Tribal Law and Order Code will impact the right to counsel in the future.) Other differences are the absence of a grand jury provision, the lack of a right to jury trial in non-criminal cases and differences in the criminal jury trial provisions.
The passage of the Act engendered controversy from two points of view. Some believed the ICRA worked as a limitation on the inherent sovereignty of tribes while others thought it would protect the individual against the arbitrary action of the tribe. There was little public discussion or Indian involvement in the creation and passage of the Act; disagreement with the purpose and provisions of the Act arose later.
The only enforcement provision of the Act, found in §1303, states in its entirety: 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. In some of the early cases under ICRA, federal courts allowed individuals to bring private suits against tribal actors for such civil remedies as injunctions, declaratory relief and damages. The case of Santa Clara Pueblo v. Martinez changed that. The Supreme Court, in deciding whether the Pueblo had violated Ms. Martinez’s children’s rights to tribal membership because she married outside the tribe, first held that the Indian Civil Rights Act did not “impliedly authorize” actions against a tribe or its officers for declaratory or injunctive relief. Additionally, tribes possess sovereign immunity from suit absent clear indications to the contrary – which are absent in the ICRA. Finally, the court determined that the sole remedy available in the state and federal courts under ICRA was the writ of habeas corpus (tribal courts can and do provide different remedies).
Two other developments came from the courts following the Act’s passage, and restricted its application. First, the Act has been interpreted as requiring plaintiffs to exhaust tribal remedies before proceeding in federal court on a habeas action. And secondly, federal courts have expressed and exercised reluctance to delve into what they consider internal tribal matters – most often questions of tribal membership. Finally, courts have interpreted the “detention” language in ICRA’s remedy provision to apply to situations where an individual is subject to the physical control of tribal authorities, such as when that person is banished from the reservation.