Tribal Courts' Failure to Protect Native American Women: A Reevaluation of the Indian Civil Rights Act

By Christofferson, Carla | The Yale Law Journal, October 1991 | Go to article overview

Tribal Courts' Failure to Protect Native American Women: A Reevaluation of the Indian Civil Rights Act


Christofferson, Carla, The Yale Law Journal


Congress has always exercised control over Native American(1) peoples through its plenary powers.(2) In 1968, that control took the form of the Indian Civil Rights Act (ICRA).(3) The ICRA represents a congressional decision to limit Native American sovereignty by setting forth an Indian Bill of Rights that applies to Native American tribes.(4) It is Congress' effort to protect individuals from tribal abuses. By designing a special Indian Bill of Rights,(5) Congress recognized that Native American tribes were distinct sovereigns, but it placed limits on how they could exercise such sovereignty.(6)

Although the central purpose of the ICRA is to "protect individual Indians from arbitrary and unjust actions of tribal governments,"(7) the Supreme Court limited this protection in Santa Clara Pueblo v. Martinez by ruling that habeas corpus is the only mechanism of judicial review provided by the ICRA.(8) In providing no remedy for civil rights violations, the Santa Clara ruling has left Native American women virtually paralyzed within a system that subordinates women.(9)

This Note argues that an expansion of the ICRA is necessary to protect Native American women from discriminatory actions by their tribes. One Native American woman has stated: "My only crime is being born a female. I want the same rights as the men--the right to vote for a chief and the right to live on the reservation."(10) Women who are discriminated against because of gender-biased tribal membership codes suffer both financially and psychologically. They no longer receive federal Indian benefits, such as annuities from the tribe, access to education and health programs, and housing.(11) Moreover, they suffer the loss of their cultural identity, because they lose the right to live on the reservation with their family and friends.(12)

Part I of this Note examines the limitations on Native American sovereignty and the passage of the 1968 Indian Civil Rights Act, in which Congress endorsed the concept of limited tribal sovereignty. Part II examines the Supreme Court's attempt to establish firm sovereignty boundaries in Santa Clara Pueblo v. Martinez.(13) This Note goes on to argue that the denial of a federal forum in Santa Clara renders the ICRA inadequate to protect the rights of Native American individuals. Part III describes how the ICRA in its present form fails to safeguard the rights of Native American women. It argues that an expansion of the ICRA is needed to remedy the gender discrimination facing women within tribal systems. Finally, Part IV proposes an amendment to the Indian Civil Rights Act designed to empower the Native American women in their struggle to secure equal rights within the tribal system. The amendment provides specific gender protection to Native American women within their tribe and gives the women a forum in which to bring their grievances.

I. The Indian Civil Rights Act: Toward Tribal Sovereignty

In 1968, Congress passed the Indian Civil Rights Act.(14) The ICRA recognized the tribes' sovereignty and their inherent right to govern the Native American peoples, but it stated that tribes would still be subject to constitutional guidelines resembling the Bill of Rights.(15) Few Native Americans saw the ICRA as a protection of their individual rights against tribal violations. Instead, most Indians saw it as a federal intrusion into tribal affairs.(16)

Congress stated that this "Indian Bill of Rights" was needed to protect individual Indians against abuses by the tribes(17) because Indians had no federal or state constitutional rights vis-a-vis the tribes.(18) In order to justify the imposition of these federally created rights, the ICRA restated the idea of limited sovereignty: Indian sovereignty exists alongside the plenary right of Congress to regulate and modify the status of tribes.(19) In this respect, tribal rights resemble the rights of the states.(20)

In the years surrounding the passage of the ICRA, the Supreme Court struggled with the limits of tribal sovereignty. …

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