Indian Civil Rights Act of 1968 - Events Before Passage of ICRA

Events Before Passage of ICRA

Long before Indians were recognized by the U.S. government as independent nations, the Bill of Rights was created in order to legally bind the federal and state governments. "But for the over 550 American Indian nations currently recognized by the U.S. government, the Constitution and the Bill of Rights represent a social contract which was created without their representation long after their own social contracts."

These "social contracts" were in no way connected to the federal government, which meant that the federal court system had no jurisdiction over a crime between two Indians on Indian soil. Since neither the Constitution nor the Bill of Rights applied to Native American tribal governments, denying freedom of press and fair jury trials, and performing illegal searches and seizures were common acts within the American Indian communities. This need for an imposition on many of the Native Americans' provisions was the basis for the creation of the Indian Civil Rights Act of 1968.

Before the Indian Civil Rights Act, a tribal member's dislike of a tribal government decision was dealt with in one of two ways; either the tribal member had to accept the decision or he/she had to leave the tribe. Today, leaving the tribe completely is not a necessary option.

Along with the types of punishment, the causes for intratribal disputes have also changed over the years. Progress within tribal communities gave way to differences in religion among tribal members. Religion brought friction between tribal members.

These disagreements were not under the federal government's control. The U.S. Supreme Court had made clear that tribal internal affairs concerning tribal members' individual rights were not covered by the Fifth Amendment; however, the tribes were ultimately subject to the power of Congress and the Constitution. The court case Talton v. Mayes helped establish these principles. There were other court cases over the following years to continue the thoughts "...that tribes were not arms of the federal government when punishing tribal members for criminal acts and that Indian tribes were exempt from many of the constitutional protections governing the actions of state and federal governments."

Later in the 1960s, Congress held a series of hearings on the subject of the authority of tribal governments. These hearings told about the abuses that many tribal members had endured from the "sometimes corrupt, incompetent, or tyrannical tribal officials." In response to these occurrences, the Indian Civil Rights Act was enacted.