Indian Civil Rights Act

The U.S. Bill of Rights does not apply to actions of tribal governments. The federal government enacted the Indian Civil Rights Act (ICRA) in 1965 to apply most of the provisions of the Bill of Rights to Tribes. It has been amended twice since 1968 - both times around the rights of tribal governments to criminally prosecute and sentence individuals.  

For information about due process in Indian Country, see this guide from WashingtonLawHelp.org.

The full text of ICRA is available online. 

Matthew L.M. Fletcher, a member of the Grand Traverse Band of Ottawa and Chippewa Indians, wrote an article in the Michigan State Law Review discussing Due Process and Equal Protection in Michigan Anishinaabe Courts. The article explains how Tribal governments might interpret ICRA's Due Process and Equal Protection Clauses in light of Tribal customs. 

What rights are protected under ICRA?

No Indian tribe in exercising powers of self-government shall infringe on the following rights—

• free exercise of religion and freedom of speech

• freedom from unreasonable search and seizures

• freedom from prosecution more than once for the same offense

• not testify against yourself in a criminal case

• not have private property taken for public use without just compensation

• a speedy and public trial, to be told the charges, confront witnesses, subpoena witnesses and, at your own expense, have a lawyer’s help in all criminal cases

• freedom from excessive bail, excessive fines, cruel and unusual punishment and, for conviction of any one offense, freedom from punishment greater than imprisonment for one year and a fine of $5,000 or both

• equal protection of the laws and freedom from deprivation of liberty or property without due process of law

• freedom from any bill of attainder or ex post facto law

• a trial by jury of at least six persons, if accused of an offense punishable by imprisonment

Can a Tribal Court criminally sentence an individual to longer than 1 year? 

Yes. The ICRA was amended to add additional protections for anyone facing longer than 1 year in jail. 25 USC 1302. 

Can I file a case in federal court if I think my rights were violated by a Tribe?

Yes. However, generally, federal courts will only hear Habeas cases. 25 USC 1303. You can seek a “writ of habeas corpus” challenging your detention when an order of a tribe has you held in jail or otherwise detained. You must first exhaust all remedies available through tribal court, including tribal court appeals, unless it would be futile to do so OR irreparable injury would result from the delay.

Can I file a case in Tribal Court?

Yes. However the procedures in each tribal jurisdiction are different and the tribe might assert sovereign immunity from suit. This means you cannot sue the government without its consent.