Indian Bill of Rights

Also known as the Indian Civil Rights Act, a part of the Civil Rights Act of 1968 that applies the Bill of Rights and the Fourteenth Amendment to the actions of tribal governments and tribal courts.

In Colliflower v. Garland[case]Colliflower v. Garland[Colliflower v. Garland](1965), the federal court system was faced with a variety of constitutional questions arising from issues of sovereigntyNative American sovereignty and the relationship of the federal government and Native American tribes and nations. In this case, Colliflower succeeded in filing a writ of habeas corpus from a tribal court to the federal level. The federal court, realizing the potential impact of the precedent it established, was very narrow in the scope of its application, ruling that its decision was applicable only to the tribal court in question, as the court had been established through the Indian Reorganization Act of 1934Indian Reorganization Act and was therefore subject to federal procedural guidelines. Prompted by the Colliflower decision, Senator Sam J. Ervin and the Judiciary Committee attached the Indian Civil Rights Act to the broader civil rights legislation of 1968.Civil Rights Act of 1968Civil Rights Act of 1968

President Harry S. Truman meeting with Indian leaders at the signing of the Indian Claims Commission Act in 1946.

(Library of Congress)

Framed not only as a move toward self-determination and self-sufficiency for American Indian nations and tribes but also as a guarantee of the civil rights of American Indians in the face of action by tribal courts, the act combined ten protections with a habeas corpus clause that was broader in scope than that applied in Colliflower. The act allowed similar protections as those found in the Bill of Rights and the Fourteenth Amendment, with small but notable differences. Because only minor crimes were considered within the purview of tribal courts, the question of representation was raised. Outside the realm of tribal law, right to counsel was guaranteed but at the defendant’s expense. In addition, the act stipulated that the maximum term of detention or imprisonment and the maximum applicable fine be set at one year and five thousand dollars respectively. The provision for a writ of habeas corpus was the only federal remedy made available for redress of violations of the Indian Civil Rights Act.

Critics of the Indian Bill of Rights frequently based their arguments on the effect of the law on the issue of tribal sovereignty. In Dodge v. Nakai[case]Dodge v. Nakai[Dodge v. Nakai] (1969), the sovereignty of the Navajo Nation was questioned when its decision to ban a legal services director from the reservation was found to violate due process. This erosion continued until the Supreme Court, in Santa Clara Pueblo v. Martinez[case]Santa Clara Pueblo v. Martinez[Santa Clara Pueblo v. Martinez] (1978), decided in favor of sovereignty on the issues of inheritance and tribal membership.

Pursuant to the Indian Bill of Rights, tribal governments can, in general, be sued only by the federal government. This liability was established in United States v. Yakima Tribal Court[case]Yakima Tribal Court, United States v.[Yakima Tribal Court, United States v.] (1986). Officials acting in accordance with tribal policy and within their authority are exempt from suit under like provisions. This protection does not extend to tribal officials acting outside their authority or to those not acting officially.

Further Reading

  • Deloria, Vine, Jr., and Clifford M. Lytle. American Indians, American Justice. Austin: University of Texas Press, 1983.
  • McCarthy, Robert J. “Civil Rights in Tribal Courts: The Indian Bill of Rights at Thirty Years.” Idaho Law Review 34 (1998): 465.

Crow Dog, Ex parte

Lone Wolf v. Hitchcock

Native American law

Native American sovereignty

Native American treaties

Santa Clara Pueblo v. Martinez