Indian Civil Rights Act of 1968
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| Indian Civil Rights Act of 1968 | |
|---|---|
| Name | Indian Civil Rights Act of 1968 |
| Short title | ICRA |
| Long title | An Act to make applicable certain provisions of the Bill of Rights to the tribal governments of the United States |
| Enacted by | 90th United States Congress |
| Effective date | 1968 |
| Cite public law | Pub.L. 90–284 |
| Signed by | Lyndon B. Johnson |
| Signed date | 1968 |
Indian Civil Rights Act of 1968 The Indian Civil Rights Act of 1968 extended many protections analogous to the United States Bill of Rights to individuals subject to tribal authority within the United States. Enacted by the 90th United States Congress and signed by Lyndon B. Johnson, the Act sought to reconcile individual liberties recognized in cases such as Brown v. Board of Education and Miranda v. Arizona with the distinct legal status of federally recognized tribes like the Navajo Nation, Cherokee Nation, and Sioux nations. Debates over the Act intersected with policymaking involving the Bureau of Indian Affairs, the Indian Reorganization Act of 1934, and later developments such as the Indian Self-Determination and Education Assistance Act.
Background and Legislative History
Congressional interest in tribal civil rights grew amid mid‑20th century policy shifts including the Indian Reorganization Act of 1934, the Termination policy, and the Relocation Act of 1956. Influential reports from the Bureau of Indian Affairs and advocacy by organizations like the National Congress of American Indians and activists connected to the Red Power movement framed discussions. Legislative hearings involved members of the United States Senate Committee on Indian Affairs and the House Committee on Interior and Insular Affairs, with testimony from leaders of the Navajo Nation, Pueblo peoples, Lakota elders, and legal scholars associated with Columbia University and Harvard Law School. Drafting referenced precedents in decisions by the Supreme Court of the United States including Worcester v. Georgia and later cases addressing tribal jurisdiction, while Congressional drafters weighed tensions evident in rulings like Oliphant v. Suquamish Indian Tribe. The resulting statute was a compromise influenced by federal policymakers, tribal governments such as the Crow Nation and Osage Nation, and civil liberties advocates including members of the American Civil Liberties Union.
Provisions and Rights Guaranteed
The Act incorporates provisions analogous to several amendments in the United States Constitution, affecting tribal ordinances and adjudication. It includes protections similar to the First Amendment (speech, assembly, religion), the Fourth Amendment (searches), the Fifth Amendment (due process and just compensation), the Sixth Amendment (trial rights), and the Eighth Amendment (cruel and unusual punishment) as applied to tribal action. Specific guarantees address habeas corpus practices, protection against unreasonable seizures, rules for criminal procedure observed in tribal court systems of the Tohono O'odham Nation and Pueblo of Zuni, and constraints on double jeopardy mirroring the Fifth Amendment concept. However, the statute also includes distinctive provisions tied to tribal governance such as limits on damages, the scope of tribal criminal sentencing, and rights to counsel, reflecting concerns voiced by tribal leaders from the Choctaw Nation and Creek (Muscogee) Nation.
Tribal Sovereignty and Limitations
The Act intentionally balanced individual protections with recognition of inherent tribal sovereignty affirmed in cases like Worcester v. Georgia and later interpreted alongside Montana v. United States. It expressly refrains from making the full range of federal civil‑rights remedies available against tribes, preserving tribal self‑government for matters such as membership, inheritance, and internal discipline exercised by nations including the Blackfeet Nation and Hopi Tribe. Limits were shaped by federal statutes like the Indian Civil Rights Act of 1968’s own exception for damages actions and by policy frameworks in the Indian Self-Determination and Education Assistance Act. The interaction with federal plenary power, as articulated in United States v. Kagama, continued to define the contours of tribal jurisdiction and the applicability of constitutional norms to nations such as the Seminole Tribe.
Judicial Interpretation and Key Cases
Federal and tribal courts have litigated the Act’s scope in significant decisions. The Supreme Court of the United States addressed related issues in cases including Santa Clara Pueblo v. Martinez, which limited habeas remedies and upheld tribal sovereign immunity, and Oliphant v. Suquamish Indian Tribe, which curtailed tribal criminal jurisdiction over non‑Indians. Lower federal courts have considered the Act in contexts involving the Navajo Nation’s courts, the Yakama Nation, and disputes adjudicated in the United States Court of Appeals for the Ninth Circuit and the Tenth Circuit Court of Appeals. Decisions in cases involving the Muscogee (Creek) Nation and the Swinomish Indian Tribal Community illustrate tensions over the availability of remedies under the Act and the interplay with statutory frameworks like the Indian Civil Rights Act’s limitation on punitive damages. Tribal supreme courts, including the Supreme Court of the Navajo Nation and the Cherokee Nation Supreme Court, have developed parallel jurisprudence on rights such as counsel and speedy trial.
Impact and Criticism
The Act produced mixed outcomes. Advocates in the National Congress of American Indians and civil liberties organizations praised the formal adoption of individual protections for residents of reservations including those of the Chippewa and Montana tribes, while critics from tribal leadership argued it imposed federal standards that risked undermining customary law practiced by the Iñupiat and Tlingit. Scholars at institutions like Stanford University and Yale University debated whether the Act advanced legal pluralism or prioritized federal norms. Litigation patterns reveal persistent gaps in remedies and enforcement, prompting commentary in journals associated with American University Washington College of Law and the University of New Mexico School of Law. Activists from the Red Power movement and legal advocates connected to the Native American Rights Fund highlighted the need for capacity building in tribal judiciaries and for reconciliation with traditional dispute resolution methods observed among the Ojibwe and Pueblo communities.
Amendments and Subsequent Legislation
Subsequent statutory and policy developments affected the Act’s implementation. The American Indian Civil Rights Amendments in various state and federal statutes, the Indian Self-Determination and Education Assistance Act of 1975, and later decisions of the Supreme Court of the United States continued to refine tribal‑federal relations. Congressional oversight by the Senate Committee on Indian Affairs and legislation supported by tribes such as the Mashantucket Pequot Tribe and Mohegan Tribe shaped funding and jurisdictional arrangements. Judicial clarification in circuits including the Eighth Circuit and legislative responses, including provisions in the Violent Crime Control and Law Enforcement Act, influenced sentencing limits and procedural safeguards in tribal courts. Ongoing reforms championed by leaders from the Navajo Nation and organizations like the National Congress of American Indians seek to harmonize individual rights with the preservation of tribal legal traditions.