Academic journal article Harvard Law Review

ICRA Reconsidered : New Interpretations of Familiar Rights

Academic journal article Harvard Law Review

ICRA Reconsidered : New Interpretations of Familiar Rights

Article excerpt

Shortly after the passage of the Indian Civil Rights Act of 1968 (1) (ICRA), the Harvard Law Review published a Note discussing potential avenues for courts to interpret the new statute and protect both tribal interests and fundamental rights. (2) Nearly fifty years later, the question of how to deal with the tension between promoting tribal sovereignty and protecting individual rights remains unresolved. This Chapter reviews what Congress, the courts, and tribes have done in the meantime and explores a potential new understanding of ICRA for the future. After a brief background review of colonial European and federal approaches to Indian law, the Chapter turns to the debate between deferential and de novo review of tribal decisions by federal courts. Finding that the next battleground of this clash is in the context of the writ of habeas corpus, the Chapter then examines the benefits and drawbacks of deference in habeas review. Ultimately, it concludes that the delicate balancing act created by the Supreme Court and ICRA is best served by deferring to tribes in habeas reviews of ICRA cases. The best way to rebuild tribes' legal systems and reinforce individual Indian rights is to allow them to run governments and rights jurisprudence of their own making within the framework provided by ICRA. Such an approach to the writ of habeas corpus most suitably addresses the sometimes dueling obligations of the federal government to individual Indians and to tribes.

A. A History of Tribal Rights and Federal Distrust

From the earliest days of European contact with Indian tribes, questions emerged regarding the function of tribal governments. To the Europeans, Indians were primitive, living in "a pattern of the first ages in Asia and Europe" (3) and "ignorant even of the name of law." (4) Yet tribes had a broad range of governmental systems, from loose bands of chiefdoms to organized confederacies and nations. (5) Far from being "unable to cope with the intelligent and persistent demands of civilization," (6) Indians had successfully designed and developed advanced governments and laws to protect the rights of their peoples long before the federal government thought to suggest these institutions to tribes. (7) But European and American distrust of, or disinterest in, Indian tribal affairs led them to apply their laws and philosophies to the exclusion of Indians' own views in these areas. (8) This section shows the history of colonial European and U.S. attempts to impose Western law and culture upon the tribes based on a mixture of skepticism and paternalism. Next, it illustrates how recent laws increasing rights protections for Indians nonetheless continue this historical trend.

1. An Imposition of Laws and Constitutions.--Despite a long history of tribal self-governance, (9) European (and later U.S.) powers felt compelled to impose European ideas or forms of governments on Indian tribes and to judge tribes by European understandings of law. To use a traditional example, the right of Indians to land was denied to them on the basis of European conceptions of property law, (10) as colonists asked only whether Locke's theory of property would encompass the Indians' practices with regard to the land. (11) There was little interest in investigating property regimes developed by Indians themselves. (12) Rather, the governments that arrived in North America searched for the particular forms of law and government with which they were familiar and, finding them lacking, sought to impose civilization and order (of their own style (13)) upon tribes. (14)

(a) "You Have No Law."--The British distrusted Indian adjudication. As early as 1640, Rhode Islanders agreed by treaty with the Narragansett Indians that any Indian whose fires damaged persons or property was "to be tryed by our Law." (15) Several treaties in this vein would be passed throughout the following centuries. (16) The treaties demonstrate the nearly universally consistent practice of extradition of Indians to tribunals under U. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.