A Law About Tribal Governments
The Indian Civil Rights Act of 1968, often abbreviated ICRA, was passed as Title II of the Civil Rights Act of 1968. Unlike many civil rights laws, it does not regulate states or private parties. It regulates tribal governments. This article is a general history, not legal advice.
To see why Congress acted, it helps to start with a basic point. The United States Constitution and its Bill of Rights restrict the federal and state governments. Tribal nations existed before the Constitution, and the Supreme Court held in an 1896 case, Talton v. Mayes, that the Fifth Amendment did not apply to a tribal government’s actions. As a result, constitutional guarantees such as free speech, protection against unreasonable searches and due process did not apply to tribal governments simply because the Constitution said so. A tribe’s own constitution, code and customs were what mattered.
Why Congress Stepped In
In the 1960s, Congress held hearings led by Senator Sam Ervin of North Carolina. The hearings looked at complaints about the way some tribal governments and the federal Bureau of Indian Affairs treated individuals, including in the courts that the Bureau had created on many reservations. Courts of Indian Offenses, set up by the federal government in the late nineteenth century, had operated under federal rules that often disregarded local custom. Many Native people also had real grievances about federal officials’ control over tribal affairs. Congress heard testimony from all sides, and the debate was never simply about tribal governments against individuals.
What the Act Generally Requires
The act contains a list of protections that tribal governments must respect when exercising their powers. In general terms, it parallels much of the Bill of Rights, including:
- freedom of speech, press and assembly, and free exercise of religion;
- protection against unreasonable search and seizure;
- protection against being tried twice for the same offense and against self-incrimination;
- the right to a speedy and public trial, to be informed of charges, to confront witnesses and to have counsel at one’s own expense;
- protection against excessive bail and cruel and unusual punishment;
- equal protection under the tribe’s laws and due process of law.
The act did not copy everything. It left out the establishment of religion clause, since many tribal governments have close ties to religious and ceremonial life. It also did not guarantee free appointed counsel, and it did not require jury trials in every case. It limited the punishments a tribal court could impose, a ceiling that Congress later raised in stages. The details of those limits have changed over time, so readers should consult current sources.
How Review Works: Santa Clara Pueblo v. Martinez
The act said that anyone could challenge detention by a tribe through a habeas corpus petition in federal court. It did not state clearly whether people could sue in federal court on other grounds. In Santa Clara Pueblo v. Martinez (1978), the Supreme Court held that the act did not create a general right to sue the tribe in federal court, and that the main federal remedy was habeas corpus. The Court stressed tribal self-government and the importance of letting tribal forums resolve most disputes. As a result, tribal courts became the usual place for most claims under the act.
This decision is widely discussed, because it shows two values in tension. One is individual protection from government overreach. The other is the right of nations to decide internal matters, including membership questions, without outside courts overruling them.
Effects on Apache Courts and Constitutions
Many Apache nations in Arizona, New Mexico and Oklahoma operate tribal courts, and several have constitutions or codes that already refer to civil rights. After 1968, constitutions and codes often included language similar to the act, and courts became places where those rights are argued. The Indian Reorganization Act had earlier encouraged written constitutions, and the 1968 act added a federal baseline on top of them. How a particular nation applies those rights is a matter for its own law, judges and council.
The act also touched an older question in Apache societies. Traditionally, disputes were often handled through family members, respected leaders and efforts to restore relationships, a subject discussed in the material on Apache justice traditions. Court systems based on outside models sit alongside these ideas. Some nations have placed more weight on peacemaking or similar approaches in their courts. Details vary, and this site does not describe any one nation’s current practice.
Related Changes
A related change in 1968 was that Congress amended earlier law so that states could no longer take on criminal and civil jurisdiction over reservations under Public Law 280 without the consent of the tribe involved. That reform came from the same period of rethinking federal policy. Later laws also addressed tribal court sentencing and domestic violence jurisdiction, and the Supreme Court has limited tribal criminal authority over non-Native people in some situations, beginning with Oliphant v. Suquamish Indian Tribe (1978). Jurisdiction rules are complicated and change, so this is only a pointer.
For present rights and procedures in any Apache nation, readers should look to that nation’s official website, tribal code and court office.