Those Meddling Kids

Those Meddling Kids

by Daniel Orr -
Number of replies: 0

The Indian Civil Rights Act seems to be one of the most contentious pieces of recent Indian policy. Enacted with the intent to curtail corruption and unfair tribal judicial proceedings, ICRA sought to extend constitutional rights into the pre-constitutional sphere of tribal law. This act usurps tribal sovereignty over internal affairs as protected by Worcester v. Georgia whileattempting to remake tribal governments in the Anglo-American image. At the same time it seeks to protect tribal members, nonmember Indians, and non-Indians from abuse by unjust tribal government practices. Today there are many people divided over how to rectify the situation ICRA has created, whether to rescind the legislation entirely, or to provide greater federal authority to enforce the rights guaranteed by the act.

But if we look over the history of the legislation, and bills that preceded it, ICRA was constructed almost entirely without Native input or desire. The significant exceptions are to the clauses in the Indian Bill of Rights concerning the right to a jury and attorney which posed economic threats to tribes. The act was first envisioned by non-Indian congressmen and was a continuation of assimilationist policy. And like much of the legislation of the previous 150 years, ICRA treated all tribes in the same manner, completely disregarding the diversity of indigenous peoples and their tribal governments, while relying upon racism and ignorance to erode one of the few remaining spheres of tribal sovereignty. Although ICRA has been stripped of nearly all its enforceability in federal courts, it is still an ideological imposition on Native sovereignty wrapped in the patronizing logic of Anglo notions of justice and the inferiority of indigenous peoples.

Any reliable and useful solution to this legislation therefore must address the underlying racism and assimilationist elements of ICRA. It must provide for individual tribes to negotiate a solution with the federal government in order to arrive at a consensual weighing of the need to protect tribal sovereignty and ensure just treatment within tribal proceedings. Providing recourse to federal courts might be paired with greater funding for attorneys and juries in tribal courts. Or, tribes might be willing to open themselves up to suit in federal courts similarly to how the Navajo Nation has waived its immunity in cases that do not seriously affect the ability of the tribe to sustain itself. If a solution to this issue is to be found that both respects the inherent sovereignty of tribes and the rights of individual citizens to just treatment under all codes of law, the consultation and consent of those tribes its an uncompromisable component.