Washington

Indian Civil Rights Act

Authored By: Northwest Justice Project LSC Funded
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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 U.S. 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. Congress adopted the ICRA to make sure 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 denying 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 yourself in a criminal case

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

  • a speedy and public trial, to be told of the charges, to confront witnesses, to subpoena witnesses and, at your own expense, to 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

How is the Indian Civil Rights Act different from the Constitution's Bill Of Rights?

  • ICRA's guarantee of free exercise of religion does not prevent a tribe from establishing a religion.  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 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.  You might be able to avoid this defense by naming as defendants in the lawsuit the tribal official who allegedly violated the ICRA.  The tribal court may issue an order for the officials to stop the unlawful conduct. 

*Our publication called Due Process in Indian Country has more about sovereign immunity.

You cannot get money damages from the tribe unless it has consented to being sued. 

Can I file an ICRA case in federal court?

Only in one type of situation:  You may seek a "writ of habeas corpus" challenging 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 it would be futile to do so 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 people who cannot afford a lawyer in Washington. 

In King County: Call 2-1-1.
All other counties: Call the CLEAR hotline toll-free at 1-888-201-1014, between 9:15 a.m. and 12:15 p.m., Monday through Friday. 

9202EN

 

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 June 2015.
© 2015 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.)