by Kristen A. Carpenter, Matthew L.M. Fletcher, and Angela R. Riley (eds.). Los Angeles: The University of California, 2012. 358pp. Paper $40.00. ISBN 9780935626674.
Reviewed by Mark Andrews, Staff Attorney, Alaska Legal Services Corporation. Markandrews [at] ak.net.
The past six decades have seen a revolution which advanced the human rights of indigenous peoples worldwide. The Indian Civil Rights Act at Forty evaluates one vital part of that revolution, the effectiveness of the Indian Civil Rights Act of 1968 in promoting individual rights and Native American sovereignty. Together, this set of essays argues that the extension of rights to the American Indian tribes has adapted well, so long as each tribe has been free to interpret the Act within its own traditions.
During the 1950’s and 1960’s the former assimilationist policies of the United States were eroding as colonialism was dying worldwide. The Indian Civil Rights Act of 1968 (ICRA) extended individual rights onto the tribal reservations. The Act provided for a variety of guarantees which track those of the Bill of Rights: freedom of speech, due process, equal protection, a speedy trial and others.
For readers unfamiliar with this area of law, the United States Constitution does not apply by its own terms to the Indian tribes, whose existence antedates the Constitution. Federal statutes apply to the tribes because of the powers of Congress under the Indian Commerce Clause of the Constitution.
Like most laws, ICRA had unintended consequences. But unlike many laws, these were for the better. The original intention was to protect individual rights on the reservations. But, with the exception of federal habeas corpus relief, ICRA gave the federal and state courts no enforcement authority. That gap opened the way for tribal courts.
In 1978 the U.S. Supreme Court rejected an equal protection challenge to a tribal rule that permitted enrollment of children whose fathers married outside the tribe, but not of children whose mothers married outside the tribe. Santa Clara Pueblo v. Martinez rested on the principle that ICRA could not be enforced by a private cause of action in federal court; as to such questions, the tribes remained sovereign.
After Santa Clara Pueblo, interpretation of ICRA was left almost exclusively to the tribal courts. Thus the tribal courts have gained four decades of valuable experience in applying ICRA under their own tribal laws and customs. The application has ranged from outright adoption of federal law to thoughtful adaptation of tribal customs and beliefs. But the decisionmakers in this process have been the Indian tribal courts.
Together, the fifteen authors have done the essential spadework; they have tracked down scores of tribal constitutions, statutes, and case law that apply to ICRA. To the extent that numbers can convey scholarship, there are about 1,600 footnotes over about 77 pages. The sources include tribal authorities from the Navajo Nation to Bill Moore’s Slough, a settlement in Alaska. So apart from its effective analyses, the book becomes valuable just as a database. This intensive research represents a great deal of time saved for the academic and the practitioner.
All the authors who analyzed available tribal authorities cited the difficulty of generalization. This diversity is a reasonable result of possibly hundreds of different tribal courts. [*288]
The Indian Civil Rights Act at Forty offers one chapter about the role of the U.S. Department of Justice and eleven more which cover five substantive areas. Here are the chapters and the thesis of each. I can offer only a glimpse of the rich variety of viewpoints presented by this book.
Lawrence R. Baca argues that the U.S. Department of Justice misinterpreted ICRA throughout the 1970’s, and persisted in wrongheaded attempts to sue tribes to enforce individual rights, even after Santa Clara Pueblo v Martinez.
In the first substantive section, four chapters address Equal Protection. Catharine A. MacKinnon offers a feminist critique of Santa Clara Pueblo. The case “won an advance in Native sovereignty on the backs of Native women” (p.28). The decision injured the cost of social equality, and this cost cannot be ignored when evaluating its impact.
Gloria Valencia-Weber, Rina Swentzell and Eva Petoskey are tribal leaders and law professors who emphasize the importance of tribal sovereignty in chapter 3. Here is Petoskey, responding to MacKinnon: “Catharine, I think a comment in your article was that the only time the Supreme Court has really upheld sovereignty was at the expense of an Indian woman, and I say, I would pay that cost” (p.49).
Ann E. Tweedy’s chapter analyzes tribal authorities, such as statutes and case law, relating to sex discrimination. Conceding the difficulty of generalization, Tweedy writes that “several statutory laws and some case law suggest a greater concern for disparate impact than inheres in federal anti-discrimination law” (p.71)
Kevin Noble Maillard describes the conflict, about 150 years old, between the Seminoles and the African-American Freedmen over the Freedmen’s struggle for tribal recognition. To me, this chapter was the most surprising; it read like hard news. The dispute is whether the historical ties of the African-Americans from Florida and the Seminoles give the Freedmen a claim to equal status with the original Seminoles. Maillard believes that Seminole tribal policy, which denies membership to the Freedmen, rests on an antiquated set of beliefs.
The second substantive section consists of two chapters that address Tribal Courts and Due Process. Frank Pommersheim observes that tribal courts have largely applied federal standards of due process. The idea of due process fits well with traditional Indian notions of fairness and is flexible enough to apply to any particular tribe. Paul Spruhan traces the evolution of due process in a tribal court. The Navajo Supreme Court began with adoption of federal standards of due process, but moved to “a sophisticated and unique synthesis of federal concepts with Navajo principles” (p.119). Among these, for example, is the principle of k’e, or assuring that “individuals living in disharmony are brought back into right relationships” (p.124).
Speech and Religion are the subject of the third substantive section. Matthew L.M. Fletcher argues that when interpreting free speech guarantees, one general rule explains a lot of what the tribal courts have done: the more likely an activity looks Anglo-American, the more likely that federal law will be applied. The more an activity is traditionally tribal, the more likely that Indian customary law will be applied. This general rule has produced a wide spectrum of applications of federal law.
Editor Kristen A. Carpenter analyzes the free exercise provisions of many tribal constitutions. She accepts the validity of assimilationist criticism of tribal acceptance of federal free speech law. Tribal adoption of federal free exercise principles may damage efforts to prevent assimilation. [*289]
The fourth section addresses Criminal Law in Indian Country. Elizabeth A. Kronk argues for an increase in tribal sentencing authority. ICRA limits criminal punishments to fines of $5,000 or less and imprisonment to no longer than one year. Kronk examines the source of this restricted authority, which was likely congressional distrust of tribal courts, and its impact on the ability of tribes to enforce the law, which is to present criminals with a territory where punishment is weak.
Carole Goldberg and Duane Champagne assess the effects of Public Law 280. Passed in 1953, the law transferred jurisdiction from the federal government to several states over criminal and civil matters in Indian country. The results have been negative. The tribes complain of a lack of enforcement by state authorities, and of discrimination and abuse by state officials on and off the reservation. States can retrocede their authority to the tribes, but this process is politically complex and difficult.
The final section, Power and Limits of ICRA, comprises one chapter in which Mark D. Rosen examines every tribal court decision interpreting ICRA as reported in the Indian Law Reporter over a period of thirteen years. He evaluates this extensive and diverse set of decisions by whether they “expand the possibilities for self-governance” (p.285) and whether they overprotect or underprotect the individual right. He examines tribal court responses in several substantive areas of ICRA: due process, equal protections, search and seizure, and tribal analogues to the first, fifth and sixth amendments.
Rosen’s chapter ends the book on a positive note. Among other things, he concludes that ICRA “has realized the potential benefits of institutional diversity and sustaining valuable idiosyncratic communities, as it has allowed for the creation of doctrines and institutions that reflect the distinctive needs and values of Native Americans” (p.323).
One criticism is in order. A book devoted to the Indian Civil Rights Act of 1968 does not contain the text of the Act. ICRA is only three sections of the United States Code, 25 U.S.C. §§1301-1303. Their inclusion would have added only three or four pages and increased the usefulness of the book as a reference tool.
The Indian Civil Rights Act at Forty is timely. As this essay is being written, Congress has been debating the need to extend to the tribes the enforcement powers over non-members in domestic relations cases under the Violence Against Women Act. Attention to indigenous rights is strong as ever.
Santa Clara Pueblo v. Martinez 436 U.S. 49 (1978).
Copyright by the Author, Mark Andrews.