Steve Russell The Bill of Rights, (the first ten amendments to the Constitution) originally bound only the federal government, but after ratification of the fourteenth amendment portions of the Bill of Rights have also come to apply to state government. But for the over 550 American Indian nations currently recognized by the U.S. government, the Constitution and the Bill of Rights represent a social contract which was created without their representation long after their own social contracts. This is why, for example, federal courts had no power to try an Indian for a crime against another Indian on Indian land before the enactment of the Major Crimes Act. Although all of the Bill of Rights applies to the federal government and most of it now applies to state government, it does not — and never has — applied to tribal governments. As a result, the Constitution would allow tribal governments to shut down newspapers, search tribal members without cause, and lock up tribal members without a fair trial.
Historically, the idea of "rights" as something possessed by individuals and enforceable against governments is foreign to most tribal traditions. Traditional governments had established methods for dealing with disputes among individuals or disputes among clans, but an individual who was unhappy with a tribal decision had the choice of living with the decision or leaving the tribe. In modern times, leaving is no longer an option except in the sense of assimilating completely into the United States, away from the tribe. Intratribal disagreements have developed in recent years, such as friction between traditional religions and Christianity, or divisions over whether to operate casinos, and if so whether to serve alcohol and what to accomplish with the money, as well as environmental issues. The combination of these disagreements and dispute resolution tools unsuited to the modern world have led to many scandals in tribal governments and unfair treatment of dissenters by those tribal governments. U.S. Supreme Court decisions have given Congress power to limit the actions of tribal governments. However, the problem with meeting corrupt and dictatorial tribal governments head-on is that in order to assert rights against tribal governments, individual Indians would have to come to federal courts, and the empowerment of individual Indians comes at the expense of what is left of tribal sovereignty. These competing values (the value of clean government and the value of self-government without outside interference) led to the Indian Civil Rights Act of 1968 (P.L. 90-284, 82 Stat. 77), which is designed to accomplish clean government by applying parts of the Bill of Rights to Indians against their own governments but also minimizes outside interference by limiting the remedy for a violation to a writ of habeas corpus in case the conferred rights are denied. A writ of habeas corpus in this context is an order to bring the person who claims his or her rights have been denied to federal court to decide whether the person's rights have in fact been denied. If the denial of rights is proven, the federal court orders a release from custody (jail).
The Indian Civil Rights Act does not allow a tribal member whose rights are violated to collect money damages against the tribal government. It does not even allow for an injunction (an order to quit violating the law). Because the only remedy is a writ of habeas corpus, a tribal member cannot even sue under the Indian Civil Rights Act unless he or she is being held in custody. One case decided under the Indian Civil Rights Act allows a writ of habeas corpus to challenge a banishment from the reservation. In that case, the "custody" is in the world outside the reservation rather than in a jail. What the Indian Civil Rights Act is best known for is extending part of the Bill of Rights to individual Indians against tribal governments. The parts of the Bill of Rights not included in this extension are those that would make no sense in the Indian government context. For example, the free exercise of religion is protected to account for the conflict between Christians and traditional religions where such conflict exists, but there is no ban on establishment of religion, since some tribes had traditional theocracies (government by religious leaders). The right to a lawyer in a criminal case is absent because lawyers are absent from many reservations. The Second Amendment (right to keep and bear arms) is absent because whether to have gun control is left to tribal government except for weapons that are completely illegal to own off the reservation. The Third Amendment (quartering troops in private homes) does not apply because Indian tribes do not have professional armies, and the Tenth Amendment (reserving unenumerated powers to the states) does not apply because states have no power over Indian nations unless a particular power explicitly is conferred on states by Congress. However, the Indian Civil Rights Acts goes farther than the language of the Bill of Rights in that it guarantees "equal protection of the law," something absent from the U.S. Constitution before the Fourteenth Amendment. It also denies tribal governments the power to pass ex post facto laws and bills of attainder, provisions that are contained in the main body of the U.S. Constitution rather than the Bill of Rights, and the power to imprison tribal members for a term greater than six months. Traditional tribal governments did not practice imprisonment at all. The Indian Civil Rights Act of 1968 also contains provisions directing the Secretary of the Interior to create a model code for courts of Indian offenses (courts on reservations not created by the tribal government) and requiring consent by tribal governments before states can assume and criminal or civil jurisdiction over Indians on Indian land. See also: Civil Rights Acts; Indian Gaming Regulatory Act; Indian General Allotment Act (Dawes Act); Indian Removal Act.
Prucha, Francis Paul, ed. Documents of United States Indian Policy, 2d edition. Lincoln, NE: University of Nebraska Press, 1990. Wilkins, David E. and K. Tsianina Lomawaima. Uneven Ground: American Indian Sovereignty and Federal Law. Norman: University of Oklahoma Press, 2001. Wunder, John R. "Retained by the People": A History of American Indians and the Bill of Rights. New York: Oxford University Press, 1994.
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.