What are the goals?

What are the goals?

by Lillian Jamison-Cash -
Number of replies: 0

The origins of the ICRA as described in The Rights of Indians and Tribes (p. 242) is somewhat perplexing. First, Pevar says that tribal members who testified before Congress “asked Congress to pass legislation protecting tribal members from further abuses”; then, these allegations were disputed by other tribal members and tribal elected officials; and that “many members of Congress were unaware that the Constitution did not apply to tribal powers.” Knowing that this almost-amusing and disheartening lack of awareness in Congress is what created the ICRA makes me question its legitimacy at the start.

The fact that the ICRA was then created without much tribal input is another tell-tale sign of its questionability. The fact that it was construed by most courts until Santa Clara, ten years later, to be a waiver of tribal sovereignty is yet another. Still, the majority of tribal courts hold that the ICRA does waive tribal sovereign immunity (Pevar, p. 249), although the Court has since ruled that it does not.

The ICRA seems like a tragic and logical next step from the IRA. At the prospect of citizenship in 1924, Indians were not asked whether or not this was something they wanted; it was simply bestowed upon them. Similarly, their civil rights were accorded them under the ICRA of 1968 is a continuation of the trend of assimilation in its attempt to “equalize” all citizens under the law. What ICRA fails to recognize is that as members of sovereign nations, Indians and other U.S. citizens are not equal; the law is thus neither egalitarian nor equitable.

What are the goals of the ICRA? If they are to uphold tribal sovereignty, it seems that they have failed. The complaints raised about tribal courts – the abrogation of individuals’ rights – are legitimate and should be addressed. However, they cannot be seen in a vacuum. Most tribal courts were created in emulation of the Anglo-American model; these CFR courts were seen as failures if they did not live up to the standards of the U.S. legal system. In 1968, Senator Ervin concluded that tribal courts’ failings lay in part with their “unfamiliarity with the traditions and forms of the American legal system” (Mccarthy, 2).

If these courts are failing to serve justice today, that should not be seen as a failure on the part of the tribe or as a sign of “weakness” or “inferiority” in Indian methods of peacemaking. Perhaps they are failing because the U.S. legal system was forcibly imposed on many tribes. The ethnocentric argument leveled by those who wish to assimilate tribal courts into an Anglo model should not be taken seriously if we are truly in an era of self-determination. What if tribes had been allowed to continue the use of their own peacemaking systems? Though counterfactuals are sometimes not productive, this is useful to think about, as tribes still have the option of moving away from the U.S. legal system if they so choose, and many have already done so.

Indians are protected by the civil rights act as American citizens. If tribal courts choose to operate by a different system, that should be their own prerogative.