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Time For Congress To Revisit The Indian Civil Rights Act

The U.S. Congress may have to, and perhaps should, revisit the Indian Civil Rights Act of 1968 in light of the abrogative behavior of tribal governments.

In the 1960s, Congress held a series of hearings on the subject of the authority of tribal governments. These hearings told about the abuses that many tribal members had endured from the "sometimes corrupt, incompetent, or tyrannical tribal officials." In response, the Indian Civil Rights Act of 1968 was enacted. (Indian Civil Rights Act, U.S. Encyclopedia of History)

The U.S. Congress may have to, and maybe should, revisit the Indian Civil Rights Act of 1968 (ICRA) considering the abrogative behavior of tribal governments, as of late, towards their own people regarding the Civil Rights of individual Indians, and in light of the corruption being exposed by numerous U.S. Attorney prosecutions.

The lack of such rights and the use (abuse?) of the defense of Sovereign Immunity by tribal governments has become a shield to sometimes illegal activities within tribal government and as a shield when committing egregious acts against the tribe’s own people. This is especially true regarding the recent use of mass disenrollment by tribal governments to enlarge shares of “per capita” payments from Indian Gaming Revenue or to put one faction of the tribe into perpetual power. In some cases, there is an element of fraud when re-recognized or newly recognized tribes use various rolls (or descendants from those rolls} to justify Federal Recognition by the U.S. Administrative (BIA) Congressional and Judicial Branches and later disavow those enrollees. In any other context, that would be looked at as fraud upon the U.S. Government. Tribes, tribal attorneys and some legal scholars have misconstrued Supreme Court decisions to give tribal governments unfettered “plenary” power over membership decisions while providing no remedies for tribal members harmed by these decisions. Due process is literally non-existent or, at best, illusory, when any appeal is limited to the body that made the harmful decision in the first instance, or limited to a judiciary controlled by that body.

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But, the U.S. Trustee stands idly by while the tribes, in the capacity of surrogate U.S. policy enforcers, continue to engage in what amounts to civil rights and human rights violations. Tribes are enforcing a U.S. policy, about blood quantum based tribal enrollment, and arbitrary termination of tribal membership, that has its origins in the allotment and termination era when the U.S. Indian Policy was to “disappear” all Indians into the mainstream. The trustee sits idly by while tribes engage in self-termination by arbitrary disenrollment of the trustee’s beneficiaries which serves the interests of the trustee in lessening its responsibilities and eventually eliminating its responsibilities towards Native Americans. Federal law and Federal Courts do not recognize any remedies for disenrolled Indians. In fact, the trustee seems more than happy to stop access to federal benefits for disenrolled Indians.

The Civil Rights in the Indian Civil Rights Act perhaps should be made “substantive” rights with all civil remedies available in tribal courts, but with money damages only when the tribe is indemnified by insurance and otherwise and only up to the amount of coverage. The remedies for enforcement of the protections afforded in the ICRA to criminal offenders in Tribal Court should be expanded beyond habeas corpus, the sole remedy left for the Indian Civil Rights Act violations after the Supreme Court so limited it in Santa Clara Pueblo v. Martinez. Perhaps the remedies should include appeals to Federal Court when the freedom of the defendant is at risk (imprisonment), with review limited to whether the tribe violated ICRA in its treatment of defendants and litigants and whether the tribe followed its own law, with remand back to Tribal Court to correct deficiencies.

It is not well known in Indian country that members of tribes that are served by a Federal Court of Indian Offenses, oftentimes called a “CFR Court” are allowed a federally paid for attorney to represent them upon a plea of not guilty, even when imprisonment is not at risk. Why should a defendant in Tribal Court have less rights than a defendant on another Indian reservation that is served by a Federal CFR Court of Indian Offenses? The reason for this disparity is that the Tribal Court operates with reference to the Indian Civil Rights Act while the Federal Court of Indian Offenses operates under the Constitution of the United State with all appurtenant protections available to Indian individuals appearing in the CFR Court for alleged criminal offenses, including a paid for attorney. So Indian country has a privileged class of defendants who are allowed greater constitutional protections just because their tribe chooses to have a Federal CFR Court. Does this disparate and discriminatory practice on the part of the U.S. violate the U.S. Constitution? One would think so. Even tribal sovereignty and self-determination does not rationalize the Federal Government Trustee’s disparate treatment of tribal defendants.

However, even in CFR Court (as in Tribal Court), the full panoply of civil remedies is not available to Indians litigants regarding court actions against the Tribal Government, its officers and employees. They are shielded by Tribal Sovereign Immunity, even when such acts violate the supposed rights set out in the Indian Civil Rights Act. Some tribes have acted responsibly and made the ICRA rights, as a matter of tribal law, substantive with all appurtenant protections, remedies and defenses. Some have even made the rights Tribal Constitutional Rights by placing them into their Tribal Constitution and waiving sovereign immunity so they can be enforced by Tribal Courts, while limiting money damages to the limits of insurance or other indemnification. Unfortunately, they are in the minority. This is especially true where tribes still operate under the old, outdated, paternalistic and colonialized Indian Reorganization Act (IRA) Constitutions that do not have true separation of powers, nor checks and balances between the governing body and courts. In this era where tribes are handling hundreds of millions of dollars of federal appropriations, or from Tribal Gaming Revenues and Tribal Lending Revenues, these old IRA Constitutions and their progeny are a recipe for corruption and theft. Want proof? Look at the prosecutions going on under the U.S. Attorney Guardians Program and other anti-tribal corruption efforts by the Inspectors General and Justice Department.

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Of course, a tribe, as an exercise in benevolent sovereignty, has the power to make the Indian Civil Rights Act rights substantive tribal law. As an act of benevolent sovereignty, a tribe may also grant a waiver of sovereign immunity to tribal members in Tribal Court litigating against the tribal government. All civil remedies would be available to tribal members suing the tribal government, its employees and officers in Tribal Court, except for money damages, which would have to be limited to the extent the tribe is indemnified by insurance or otherwise. This certainly would be a more responsible exercise of sovereignty than using sovereign immunity as a shield to allow Tribal Government, employees and officials to engage is sometimes illegal activities, activities that violates the tribe’s own laws (TERO for instance), and allows arbitrary and capricious acts that victimize the tribal membership and others under Tribal Jurisdiction. It would also allow tribe itself to address the theft and conversion of tribal and federal money and assets that is presently rampant in Indian country as indicated by the dozens of federal prosecutions of tribal leaders, employees and officials. The U.S. Attorneys will continue to prosecute tribal government corruption when it rises to the level of a criminal act, and rightly so. But isn’t it a responsibility of a benevolent sovereign to prevent such corruption and criminal activity by its own laws and to prosecute those criminal acts under its own laws? Of course, it is. Tribes should so act, before Congress steps in and does it for them.

Harold Monteau is a Chippewa Cree Attorney writing from New Mexico. He has served as a Federal Magistrate in the Court of Indian Offenses on the Wind River Reservation.