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ICRA

Indian Civil Rights Act

 

One of the Senators put it this way:

“As the hearings developed and as the evidence and testimony was taken, I believe all of us who were students of the law were jarred and shocked by the conditions as far as constitutional rights for members of the Indian tribes were concerned. There was found to be unchecked and unlimited authority over many facets of Indian rights … The Constitution simply was not applicable.” [3]

The I.C.R.A. did reveal Congress’ intent and “commitment to the goal of tribal self-determination” by providing for “strengthening certain tribal courts through training of Indian judges” and by reducing some of the frustrating and excessive rules and regulations tribes had been experiencing from the Federal Bureau of Indian Affairs (B.I.A.). [8]

Although the I.C.R.A. was clearly modeled after the U.S. Constitution’s Bill of Rights, it was not intended to be identical. The I.C.R.A. is a federal law, making compliance with this law consistent with an Indian tribe’s relinquishment of external sovereignty (doing nothing contrary or in conflict with the laws of the United States). Internal sovereignty, an Indian tribe’s inherent right of self-government, was not to be unnecessarily infringed upon by this federal law. This is why alleged violations of the I.C.R.A. are to be addressed only by tribal court proceedings.

As the I.C.R.A. was drafted, it was noted that, as tribal members addressed issues regarding their civil rights, federal courts would be less prepared to evaluate tribal tradition and custom than tribal courts.

“[T]hose issues likely to arise in a civil context, will frequently depend on questions of tribal tradition and custom which tribal forums may be in a better position to evaluate than federal courts.”

It was Congress’ purpose that solutions for civil rights violations by tribal government and their agents to be found through tribal court proceedings.

There have been mixed feelings about the I.C.R.A. since its inception. On one hand, it exposed abuses that had taken place and it sought to protect an individual’s right without undermining a tribal government’s power to be self-governing. Yet, many saw the I.C.R.A. as an intrusion by the federal government into matters tribes hold sacred – their tribal cultures and ways. Indeed, the I.C.R.A. gave federal courts the authority, through writ of habeas corpus, to arbitrate regarding internal affairs of a tribe.

Endnotes

[1] Hearings on constitutional rights of the American Indian before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, U.S. Senate, 88th Cong., 2d Sess., p.22

[2] Preamble of the United States Constitution

[3] Senator Roman L. Hruska of Nebraska, 111 Cong. Rec. part 26, p.35473, 90th Cong., 1st Session (Dec. 7, 1967)

[4] Santa Clara Pueblo v. Martinez, 436 U.S. 49, 61 (1978) citing the central purpose of the I.C.R.A. from its legislative history, S. Rep. No. 841, 90th Cong., 1st Sess., 5-6 (1967)

[5] Id. at 55

[6] Id. at 63

[7] Id. at 62

[8] Id. at 62-64

[9] Id. at 67

 

Excerpts used by permission from: "Understanding Jurisdiction on Tribal Lands - A User-friendly PL 280 Resource Guide"