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![handle is hein.ali/alireporter0039 and id is 1 raw text is:
THE ALI
Reporter
THE QUARTERLY NEWSLETTER OF THE AMERICAN LAW INSTITUTE
Project Spotlight:
The Law of American Indians
Indian Bill of Rights vs.
U.S. Bill of Rights
By American Indian Law Reporter Matthew L.M Fletcher,
and Associate Reporters Wenona T Singel and
Kaighn Smith, Jr.
Many people are not aware that federal constitutional constraints on
governmental action set forth in the Bill of Rights and the Fourteenth
Amendment do not apply to, or constrain, tribal government.' The primary
source for individual rights to constrain tribal government authority is
tribal law.
The Indian Civil Rights Act (ICRA), enacted by Congress as Title II of the
1968 Civil Rights Act, is the primary source for individual rights and tribal
government action. Portions of the ICRA that substantially mirror the Bill
of Rights are popularly called the Indian Bill of Rights. The Indian Bill of
Rights extends most of the constitutional protections of the Bill of Rights
to individuals under the jurisdiction of Indian tribal governments. With the
exception of actions for habeas corpus relief, those guarantees are enforceable
exclusively in tribal courts and other tribal fora. In order to preserve certain
aspects of tribal government and sovereignty, some portions of the Bill of
Rights were modified or left out. The main differences include the absences of
an establishment clause and of a right to counsel at the government's expense.
Tribal courts have generally interpreted the provisions ofthe ICRA
in accordance with the method recommended in 1969 by the leading
commentary on the Act: [u]nless the record shows a willingness to modify
tribal life wherever necessary to impose ordinary constitutional standards,
courts should take this legislation as a mandate to interpret statutory
standards within the framework of tribal life.' One tribal court follows a
principle that, where no tribal custom or tradition has been argued to be
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