The second amendment to the U.S. Constitution grants all citizens the right to bear arms. Do you have the right to bear arms when you enter an Indian reservation?
The Bill of Rights (the first 10 amendments to the U.S. Constitution) restrains federal government and guarantees individuals certain rights. The 14th amendment applies the Bill of Rights to state governments but, since tribal governments predate the Constitution, the Bill of Rights does not apply to restrain tribal governments. You therefore have no right to bear arms on the reservation – unless the tribe decides to grant you that right.
What about freedom of religion? Can you practice any religion you want to on an Indian reservation?
There is a pueblo in New Mexico, Pueblo DeJemenez. In 1954, the pueblo allowed only Catholics to be buried in the pueblo cemetery. Protestant missionaries were not allowed in the pueblo and Protestants, whether members of the Pueblo or not, could not build a church within pueblo boundaries. Could the pueblo legally do this? Yes, since the Constitution didn’t apply, there was no law that prohibited an Indian tribe from discriminating based on religion.
In 1968, to fill the void left by this lack of constitutional rights, Congress passed the Indian Civil Rights Act. The act was attached to a housing bill. It received some opposition from those Indians afraid of losing their custom and tradition, but was passed nevertheless.
The 5th amendment to the constitution provides for equal protection of all citizens. Federal law prohibiting discrimination is based on this provision. Does this mean that Indian tribes must not discriminate when hiring employees at their casinos?
In Morton v. Mancari, a non-Indian sued because the Bureau of Indian Affairs gave Indians preference when hiring and promoting employees. The court upheld a statute that gave Indian preference for BIA jobs. The court decided that the preference is political - not racial - since it applies only to members of federally-recognized tribes.
Equal protection claims have also been rejected when applying federal criminal laws on the reservation. In 1977, an Indian charged with a federal crime because it was committed on the reservation, claimed that he was not being treated as fairly as non-Indians because if a non-Indian committed the crime, state law would apply and under state law it would be harder to prove the crime and the defendant would get a more lenient sentence. The court summarily rejected this argument.
The Indian Civil Rights Act (ICRA) includes most, but not all, of the rights enumerated in the Bill of Rights. Some Constitutional rights are not included:
1. There is no right to an indictment by a grand jury for capital or infamous crimes. (This shouldn’t affect most of you)
2. There is no establishment of religion clause.
This is the clause that requires the separation of church and state. Tribal governments have no duty to separate church and state, and many tribal meetings open with a prayer.
3. There is no right to bear arms.
4. There is no right to refrain from quartering troops, so if a tribe decides to have its own army, tribal members do not have the right to refrain from housing them. (This is not likely to be an issue any time soon).
5. There is no right to appointed counsel. This means that if you are charged with a crime and you cannot afford an attorney, you are out of luck and can be forced to represent yourself. Although tribes have no duty to provide public defenders, many do.
The ICRA provides restraint on tribal governments but the only remedy is a habeas corpus action, unless the tribe waives its sovereign immunity to allow enforcement of the act. A habeas corpus action is a petition filed in court claiming that the petitioner is being held illegally. If the action is successful, the individual will be released from jail, but it doesn’t provide for any other relief.
The proper forum for violations of the ICRA is tribal court but if no tribal court is available, an action can be filed in federal court to enforce the act’s provisions but, as noted above, only for habeas corpus actions.
The only restraints on tribal government are provided pursuant to the Indian Civil Rights Act, which is statutory. Unlike the constitution, Congress can modify the act at any time. (It takes 2/3 majority vote of the people in a nationwide election to modify the constitution).