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14 Am. Indian L. Rev. 269 (1988-1989)
Civil Liberties Guarantees under Tribal Law: A Survey of Civil Rights Provisions in Tribal Constitutions

handle is hein.journals/aind14 and id is 275 raw text is: CIVIL LIBERTIES GUARANTEES UNDER TRIBAL LAW:
A SURVEY OF CIVIL RIGHTS PROVISIONS
IN TRIBAL CONSTITUTIONS
Elmer R. Rusco*
Native American societies have a unique legal position in the
American polity because they still retain the right to govern them-
selves according to cultural standards which are not those of the
general society.' Consequently, the Constitution does not automati-
cally restrain tribal governments. One important area in which
this is the case concerns protections for individual liberties against
tribal governments.
In 1968, Congress enacted the Indian Civil Rights Act (ICRA).2
This law applied most of the Bill of Rights, in a slightly modified
form, to tribal governments; it also stated that the writ of habeas
corpus was available to persons alleging violations of the ICRA
by tribal governments. In 1978 the United States Supreme Court,
in Santa Clara Pueblo v. Martinez, upheld the ICRA and inter-
preted its meaning.' The Court ruled that the ICRA had not repealed
the immunity of suit against tribal governments; moreover, that
Congress had intended to allow only habeas corpus as a means
of enforcing the Act. This conclusion was reached because the
Court believed that creation of a federal cause of action for the
enforcement of rights created by the Act plainly would be at
odds with the congressional goal of protecting tribal self-
government.4
The chief effect of the holding in Martinez, absent Congressional
modification of the ICRA, is that the Indian Civil Rights Act
is primarily enforceable in tribal courts. Tribal forums are
* Professor Emeritus, Department of Political Science, University of Nevada-Reno.
Due to the inability of the law review staff to obtain certain materials cited in this
article, we have relied on the author's own research and expertise to verify those
materials.-Ed.
I. F. COHEN, HANDBOOK OF FEDERAL INDL&N LAW, 202-04, 660-72 (1982 ed.)
[hereinafter F. COHEN]; M. PRICE, LAW AND THE AmucAN INDU,, 730-78 (1973); GarcHEs
& WILKIsON, CASES AND MATERIALS ON FEDERAL INDIAN LAW, 255-63 (1st ed. 1979)
[hereinafter GETCHES & WILKINSON]. Ernest Schusky has called this legal status the right
to be different. E. Scrusicy, THE RGHT TO BE INDLAN (1970).
2. Indian Civil Rights Act of 1968, Pub. L. No. 90-284 (codified at 25 U.S.C. §§
1302-1303 (1968).
3. Santa Clara Pueblo v. Martinez, 98 S. Ct. 1670, 436 U.S. 49, 56 L. Ed.2d 106
(1978).
4. Id. at 64.

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