Indian Civil Rights Act
Authored By: Northwest Justice Project
What is the Indian Civil Rights Act?
The Indian Civil Rights Act of 1968 (ICRA) is a federal law. It says Indian tribal governments cannot enact or enforce laws that violate certain individual rights. It is like the Bill of Rights in the United States Constitution, which guarantees personal freedoms against actions of the federal government, and the Fourteenth Amendment to the Constitution, which extends those protections to actions of state governments. These Constitutional limitations do not apply to tribal governments, so Congress adopted the ICRA to make sure that tribal governments respect basic rights of Indians and non-Indians.
What individual rights does the Indian Civil Rights Act protect?
No Indian tribe in exercising powers of self government may enact or enforce any law which denies anyone the right to:
- 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 oneself in a criminal case;
- not have private property taken for public use without just compensation;
- a speedy and public trial, to be informed of the charges, to confront witnesses, to subpoena witnesses and, at one’s own expense, to be assisted by a lawyer 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; and
- the right, if accused of an offense punishable by imprisonment, to a trial by jury of no less than six persons.
How is the Indian Civil Rights Act different from the Constitution’s Bill Of Rights?
- The ICRA guarantee of free exercise of religion does not prohibit a tribe from establishing a religion. This is because many tribes do not separate religion from government and other areas of life.
- The ICRA guarantees a criminal defendant the right to have a lawyer at his/ her own expense, but a tribe does not have to provide a lawyer for a defendant who cannot afford to hire one.
- There is no right to a jury trial in civil cases under the ICRA.
I believe a tribal government has violated my civil rights. What can I do?
You may pursue any avenue of appeal available through tribal government.
If you sue it in tribal court, the tribal government may raise a defense of sovereign immunity. This is a legal doctrine which prevents a government from being sued without its consent. It may be possible to avoid this defense by naming as defendants in the lawsuit the tribal official who allegedly violated the ICRA. The tribal court may order injunctive relief to stop the officials from repeating or continuing the unlawful conduct.
You cannot get money damages from the tribe unless it has consented to being sued.
The ICRA provides only one federal court remedy for its violation: you may seek a “writ of habeas corpus” to test the legality of your detention when you are being held in jail or otherwise detained by an order of an Indian tribe. You must first exhaust all remedies available through the tribal court, including tribal court appeals, unless the effort would be futile or irreparable injury would result from the delay.
What if I need Legal Help?
The Northwest Justice Project’s Native American Unit (NAU) provides free civil (non-criminal) legal services for Native Americans who cannot afford a lawyer in Washington. To reach us, call the toll-free hotline at (888) 201-1014, and then press 5 to leave a message for the NAU. You can leave a message 24 hours a day, 7 days a week and we will return your call within 2 business days.
CLEAR: CLEAR is Washington’s toll-free, centralized intake, advice and referral service for low-income people seeking free legal assistance with civil legal problems. Call 1-888-201-1014 weekdays from 9:10 a.m. until 12:25 p.m. CLEAR works with a language line to provide interpreters as needed at no cost to callers. If you are deaf or hard of hearing, call 1-888-201-1014 using your preferred TTY or Video relay service.You can also apply online with CLEAR*Online- http://nwjustice.org/get-legal-help .
Persons 60 and Over: Persons 60 or over may call CLEAR*Sr at 1-888-387-7111, regardless of income.
This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice. This information is current as of the date of its printing, August 2012.
© 2012 Northwest Justice Project —1-888-201-1014
(Permission for copying and distribution granted to the Alliance for Equal Justice and to individuals for non-commercial use only.)