Indian Civil Rights Act Is Passed

Date April 11, 1968

A controversial measure designed to guarantee American Indians living under tribal governments the same rights as those of other U.S. citizens has been debated since its passage in 1968. Critics decry its erasure of tribal sovereignty and traditions.

Also known as Title II of the Civil Rights Act of 1968; Indian Bill of Rights; Public Law 284, 90th Congress

Locale Washington, D.C.

Key Figures

• Sam Ervin (1896-1985), North Carolina senator who proposed bringing tribal governments under the framework of the U.S. Constitution
• Ben Reifel (1906-1990), South Dakota congressman and member of the Rosebud Sioux tribe

Summary of Event

A significant but controversial piece of legislation designed to guarantee the rights of individual American Indians came about in special Indian titles of the Civil Rights Act signed into law on April 11, 1968. The existence of tribal governments and tribal courts had raised the issue of protection of the individual rights of American Indians living in a tribal context.

Tribal governments have been considered to be inherently sovereign, because they predate the U.S. Constitution and do not derive their power to exist or to govern from either federal or state governments. Federal recognition or regulation of tribes does not make them part of the U.S. government or guarantee constitutional protection for tribal members. An 1896 U.S. Supreme Court case, Talton v. Mayes, determined that the Bill of Rights of the Constitution does not apply to tribes, because tribes derive and retain their sovereignty from their aboriginal self-governing status. The Indian Citizenship Act of 1924, which gave American Indians dual citizenship in their tribes and the United States, did not make the Bill of Rights applicable to situations involving tribal government.

There was little interest in the lack of individual rights for American Indians living a tribal existence until the 1960’s, when national attention turned to civil rights. When the U.S. Senate began to investigate civil rights abuses throughout the nation, some attention was directed at tribal governments. In 1961, the Senate held hearings on civil rights issues on reservations, and investigators heard many examples of infringement on individual liberties and the lack of any way to redress grievances. Contributing to the problem was the fact that tribal societies emphasized the good of the group and were inclined to consider the good of the people as a whole more important than the preservation of individual rights.

An 1886 Supreme Court decision, United States v. Kagama, determined that Congress has authority to govern the internal affairs of tribes and to make laws that directly affect American Indians. Therefore, Congress could impose restrictions on tribal governments and move toward granting greater individual protections to American Indians living on reservations.

In 1968, when civil rights legislation was proposed to remedy the unequal protection of some groups in the United States, Senator Sam Ervin of North Carolina proposed bringing tribal governments under the constitutional framework of the United States. After a good deal of political maneuvering, Congressman Ben Reifel of South Dakota, a member of the Rosebud Sioux tribe, rallied support for the bill, and Public Law 90-284, the Indian Civil Rights Act, became law.

The Indian Civil Rights Act was a set of special titles within the Civil Rights Act. It was intended to protect the rights of individual American Indians; however, it was controversial for its emphasis on individuals rather than tribal groups. The act was intended to preserve tribal autonomy while protecting the rights of individual tribal members. Largely as a result of tribal protests that the full Bill of Rights would severely upset traditional governing practices, a blanket imposition of the Bill of Rights on tribal governments was replaced by a more selective and specific list of individual rights that were to be protected. Those parts of the Bill of Rights that seemed to infringe on the special character of tribal government were omitted.

The Indian Civil Rights Act prohibits tribal governments from interfering with freedom of speech, religion, press, assembly, and petition for redress of grievances. It specifically authorizes a writ of habeas corpus for anyone detained by the tribe, and it grants due process. This bill also protects the right of privacy against search and seizure, using language identical to that of the Bill of Rights. The Indian Civil Rights Act does not guarantee persons free counsel in criminal proceedings or the right of indictment by grand jury.

In addition to protecting individual freedoms, the Indian Civil Rights Act contains some provisions that impact tribal governments directly. The act permits tribal governments to establish an official tribal religion in order to allow the continuation of the quasi theocracies that form the basis of government in some American Indian communities. However, the act does require that individual freedom of religion be protected. The secretary of the U.S. Department of the Interior is charged with the responsibility of drawing up codes of justice to be used in courts trying American Indian offenders. Assault resulting in serious bodily injury was added to the offenses on reservations that are subject to federal jurisdiction under the Major Crimes Act.

In an important victory for tribal autonomy, Section 7 of Public Law 83-280 was repealed. Public Law 83-280, passed by Congress in 1953 in an attempt to abridge the rights of tribal courts, had given states the authority to extend civil and criminal jurisdiction over reservations. The passage of the Indian Civil Rights Act authorized the retrocession of jurisdiction already assumed by a state. A provision in the bill guaranteed the automatic approval of tribal contracts if the secretary of the interior did not act on a tribal request within ninety days.

Significance

The Indian Civil Rights Act was controversial when it was proposed and has remained so. Many American Indians view it as an attempt to impose non-Indian values on tribal societies and regard it as a violation of tribal sovereignty, because Congress unilaterally imposed the bill on tribal governments and people. This raised many questions regarding the meaning of “consent.”

Tribes do not seek to be protected from misuse of power, but there are questions about both the legality and cultural implications of the Indian Civil Rights Act. The fact that Congress intended to bring tribal governments more within the constitutional framework of the United States caused a good deal of controversy. Tribes have questioned the legality of permitting Congress, which basically represents states, to have a direct role in the formulation and passage of a law for tribes. No mechanism was afforded for tribes to accept or reject this legislation, although tribal cultures and customs are directly impacted by this law because it emphasizes individualism. Many tribal leaders feel the Indian Civil Rights Act restricts tribes in the exercise of their inherent sovereignty.

Since passage of the bill, numerous individual challenges to tribal authority have been litigated in federal courts, and many court decisions have favored the individual and weakened the concept of tribal sovereignty. More recent court decisions have tended to use tribal customs and traditions in interpreting the act.

A landmark decision, Santa Clara Pueblo v. Martinez (1978), supported a tribe’s right to extend membership only to the children of male tribal members, as this was in keeping with tribal custom. The court ruled that it did not violate laws against sexual discrimination, because the Indian Civil Rights Act had a dual purpose of protecting individual rights as well as tribal autonomy.

Bibliography

Deloria, Vine, Jr., ed. American Indian Policy in the Twentieth Century. Norman: University of Oklahoma Press, 1985. Several essays deal with the impact of the Indian Civil Rights Act on American Indian tribal governments. Also explores larger constitutional issues and tribal governments.

Deloria, Vine, Jr., and Clifford M. Lytle. The Nations Within: The Past and Future of American Indian Sovereignty. New York: Pantheon Books, 1984. An important discussion of the impact of legal and legislative measures on tribal autonomy and self-rule.

French, Laurence Armand. Native American Justice. Chicago: Burnham, 2003. Study of the earliest years of American Indian and Anglo-American relations—with chapters including “Indian Policies, Treaties, and Rights,” “The Genesis of Indian-U.S. Relations,” and “From the Colonial Era to Federal Control”—to the Indian Civil Rights Act of 1968 and the late twentieth century. Highly recommended.

Olson, James S., and Raymond Wilson. Native Americans in the Twentieth Century. Chicago: University of Illinois Press, 1984. Examines the Indian Civil Rights Act and its assault on tribal sovereignty. Discusses numerous contemporary issues in a historical context.

Prucha, Francis Paul. The Great Father: The United States Government and the American Indians. 1984. New ed. Lincoln: University of Nebraska Press, 1995. Examines the relationship of the federal government and tribal governments from the formation of the United States to the 1980’s. Explores the Indian Civil Rights Act in this context.

Richland, Justin B., and Sarah Deer. Introduction to Tribal Legal Studies. Walnut Creek, Calif.: AltaMira Press, 2004. A comprehensive overview of North American tribal law and governance, with chapters examining legal norms and legal structures, legal practices, tribal law in oral traditions, the Indian Civil Rights Act of 1968, tribal sovereignty, and much more. Highly recommended.

Tribal Court Clearinghouse. http://www.tribal-institute .org. Web site for resources on topics in tribal law and justice, sponsored by the Tribal Law and Policy Institute. Recommended for primary source and other historical and legal materials.

Wunder, John R.“Retained by the People”: A History of American Indians and the Bill of the Rights. New York: Oxford University Press, 1994. Chronicles the history of the relationship between American Indians and the Bill of Rights. Presents a detailed assessment of the 1968 Indian Civil Rights Act.