Chapter 13 of Pevar opens with an explanation of the term civil right that is almost pointedly ironic in light of the rest of the chapter’s discussion: “A civil right creates a standard of equality or justice that is intended to protect a person against governmental abuse. In democratic countries, citizens decide what powers to give the government and what civil rights to keep for themselves.” The Indian Civil Rights Act (ICRA), however, is an act of outright cultural paternalism that has done little to protect the rights of tribal members while it has struck an enormous blow to tribal sovereignty. Its very enactment implies that Indians are incapable of just and moral self-government, and need the U.S. to do what is best for them.
The imposition of this “Indian Bill of Rights” is almost absurd considering the circumstances under which the Constitution’s Bill of Rights were imposed. After the states won their freedom in the Civil War from a colonial empire that they believed was abusing them and ignoring their interests, Anti-Federalists feared that allotting too much power to a single centralized government would only result in similar abuses. The Bill of Rights was negotiated in order to maintain the support of these people while laying the groundwork for the still very young government. ICRA, on the other hand, was passed without the express approval or even very extensive consultation of any tribal officials or members—it is exactly the overreaching, big-government action that the Bill of Rights was set on preventing. True, when it was conceived, none of the writers intended for Indians to be entitled to the same protections and guaranteed independence as a white man, but they also didn’t expect that all Indians would one day be U.S. citizens.
It is furthermore questionable that the passage ICRA was possible by application of the plenary power doctrine, the ideology that has been used to deny tribes both Constitutional and reasonable treatment by the U.S. government for more than a century. In other words, they took the reasoning that prevents Indians from using the Constitution as a tool, and utilized it to force certain parts of the Constitution on Indians.
It is important not to dismiss the complaints that sparked congressional support for the ICRA, but the act is extremely short-sighted as a resolution. A large percentage of the tribal governments in which Congress found fault were the products of the Indian Reorganization Act of 1934, which, although well-intentioned, effectively provided monetary support in several forms in exchange for Indians giving up aspects of their own governmental systems for more Anglo-looking models. This act disrupted the tribes’ various systems of government and justice that had served them for years and made them act out a model that clearly is also flawed. The ICRA in this context looks like a repeat of the same mistake: forcing tribal societies to implement an institution which is for them not natural, nor perhaps particularly useful.