Many people are not aware that federal constitutional constraints on governmental action set forth in the Bill of Rights and the Fourteenth Amendment do not apply to, or constrain, tribal government.¹ The primary source for individual rights to constrain tribal government authority is tribal law.

The Indian Civil Rights Act (ICRA), enacted by Congress as Title II of the 1968 Civil Rights Act, is the primary source for individual rights and tribal government action. Portions of the ICRA that substantially mirror the Bill of Rights are popularly called the “Indian Bill of Rights.” The Indian Bill of Rights extends most of the constitutional protections of the Bill of Rights to individuals under the jurisdiction of Indian tribal governments. With the exception of actions for habeas corpus relief, those guarantees are enforceable exclusively in tribal courts and other tribal fora. In order to preserve certain aspects of tribal government and sovereignty, some portions of the Bill of Rights were modified or left out. The main differences include the absences of an establishment clause and of a right to counsel at the government’s expense.

Tribal courts have generally interpreted the provisions of the ICRA in accordance with the method recommended in 1969 by the leading commentary on the Act: “[u]nless the record shows a willingness to modify tribal life wherever necessary to impose ordinary constitutional standards, courts should take this legislation as a mandate to interpret statutory standards within the framework of tribal life.² One tribal court follows a principle that, where no tribal “custom or tradition has been argued to be implicated . . ., [tribal courts] will look to general U.S. constitutional principles, as articulated by federal and [state] courts, for guidance. . . .”³

The so-called “Indian Bill of Rights” provides:

No Indian tribe in exercising powers of self-government shall—

(1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;
(2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;
(3) subject any person for the same offense to be twice put in jeopardy;
(4) compel any person in any criminal case to be a witness against himself;
(5) take any private property for a public use without just compensation;
(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense (except as provided in subsection (b));

(7)
(A) require excessive bail, impose excessive fines, or inflict cruel and unusual punishments;
(B) except as provided in subparagraph (C), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 1 year or a fine of $5,000, or both;
(C) subject to subsection (b), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 3 years or a fine of $15,000, or both; or
(D) impose on a person in a criminal proceeding a total penalty or punishment greater than imprisonment for a term of 9 years;

(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;
(9) pass any bill of attainder or ex post facto law; or (10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.⁴

The individual-rights protections include: the rights to free exercise of religion, to free speech, to freedom of the press, to freedom of assembly, and to petition for a redress of grievances; the right to be free of unreasonable searches and seizures without a search warrant to be issued only upon a showing of probable cause; the right to be free from being placed in double jeopardy and from self-incrimination; the right to due process and equal protection; the right to be free from taking of property without just compensation; the rights to a speedy trial, to confront witnesses, and to the assistance of counsel; the freedom from excessive bail and cruel and unusual punishment; the freedom from bills of attainder and ex post facto laws; and the right to a jury of at least six persons in all criminal cases carrying the possibility of imprisonment.

The Act provides for enhanced sentencing authority for Indian tribes, provided that the sentencing tribe meets statutory criteria guaranteeing criminal procedural rights. It authorizes those persons detained after conviction of crimes by tribal authorities to petition for a writ of habeas corpus in federal court.

As we move forward with the Restatement, it’s important for our members to remember the limitations of federal law on tribes. Indian tribes as sovereign nations and the different laws that govern them make the Restatement particularly important, as more and more often judges and practitioners are being asked to deal with this polarity, but don’t yet have the background in this area of law.

This piece presents information contained in Council Draft No. 3 (Sept. 7, 2016), including proposed black letter, Comments, and Reporters’ Notes from Council Draft No. 3. There was discussion of portions of Council Draft No. 3. However, due to insufficient time, no approval was sought at the October Council Meeting. The Council will continue its consideration of the draft at a future meeting.

1 Proposed black letter from Restatement of the Law of American Indians, Chapter 2, § 23 (Am. Law Inst., Council Draft No. 3, 2016). See id.
2 Note, The Indian Bill of Rights and the Constitutional Status of Tribal Governments, 82 Harv. L. Rev. 1343, 1355 (1969).
3 Louchart v. Mashantucket Pequot Gaming Enter., 27 Indian L. Rep. 6176, 6179 (Mashantucket Pequot Tribal Ct. 1999).
4 25 U.S.C. § 1302(a).