Selective Incorporation, Sovereign Immunity, and the Paradox of ICRA

Selective Incorporation, Sovereign Immunity, and the Paradox of ICRA

by Yili Yao -
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            It is generally understood that the traditional conception of tribal judiciaries as unjust to both whites and Indians. Therefore, a bipartisan Congress passed the Indian Civil Rights Act of 1968, which was signed into law by President Johnson. Ostensibly, ICRA helps individual Indians in tribal courts by applying many provisions of the Bill of Rights. However, there are some political and constitutional questions raised by ICRA.

            The first is the Fourteenth Amendment’s selective incorporation of the Bill of Rights. The first eighth Amendments of the Bill of Rights are selectively applied to state governments; some exceptions are the Third Amendment, the Fifth Amendment’s right to an indictment by a grand jury for capital crimes, and the Seventh Amendment’s right to a jury trial in civil suits. Let us look at which provisions of the Bill of Rights are not incorporated against tribal governments in ICRA: the First Amendment’s right to freely associate, the Second Amendment, the Third Amendment, the Seventh Amendment’s right to a jury trial in civil suits, and the full protections of many others. Do Indians create their own associations and civic organizations? If so, can they freely determine their memberships? Do tribal governments issue gun control ordinances? If so, how does that affect an Indian citizen’s right to bear arms? If Congress were serious about the ICRA, why does it not appropriate enough money for public counsel for the poor accused (McCarthy 22)? Just as all of the Bill of Rights should apply to the States, all of it should also apply to tribal governments so as to promote clarity.

            Another consideration is tribal sovereign immunity, which is similar to that of state and federal governments (McCarthy 7). The Supreme Court in Santa Clara Pueblo v. Martinez (1978) ruled that suits against an Indian tribe are barred by sovereign immunity.1 But there are exceptions—clear voluntary waivers, ‘sue and be sued’ provisions in tribal corporate charters, exceeding lawful tribal authority, and even implied waivers. Therefore it seems that the doctrine of tribal sovereign immunity has myriad holes within, making it nowhere as strong as say, that of the federal government. By corollary, weak tribal sovereign immunity runs contrary to the modern political idea of tribal self-determination. Finally, there unfortunately exists the paradox central to ICRA. The paradox of ICRA is that if limited government inherent in the Bill of Rights is morally good and if letting tribal governments pursue a greater degree of autonomy and self-determination is also morally good, then ICRA’s protections for individual Indians results in less tribal sovereignty.




1. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), 436 U.S. 49 98 S. Ct. 1670; 56 L. Ed. 2d 106; 1978 U.S. LEXIS 8