Tribal incorporation of First Amendment norms: a case study of the Indian tribes of South Dakota.

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Tribal incorporation of First Amendment norms: a case study of the Indian tribes of South Dakota.

I. INTRODUCTION

As American culture becomes more individualistic, social and legal opposition has arisen regarding expansive judicial interpretations of First Amendment freedoms. According to this opposition, the courts have interpreted such freedoms in an almost exclusively individualistic light, with little regard for community interests and values. This debate over individual rights versus social and community interests has been raging for decades in the areas of pornography, crime prevention, and national security. In the case of constitutional protections granted to graphically violent video games, for instance, critics argue that courts should take a more balanced view of First Amendment freedoms, giving greater consideration to community interests in healthy child development and crime prevention, and less consideration to the rights of individual game distributors to sell their products to minors whose parents object to such games.

The First Amendment is a classic expression of the kind of western liberal political thought underlying American constitutional democracy. This political philosophy, in the classic sense, places great emphasis on individual freedom. Consequently, a strictly individualistic view of the First Amendment becomes almost inevitable. However, even within the borders of the United States, an alternate view and application of the First Amendment is emerging.

This article will examine how Indian tribal courts have incorporated First Amendment norms within tribal legal systems. Given the more traditionally communal nature of tribal societies, Indian tribal courts have taken a slightly different approach to the kind of individual rights articulated in the First Amendment. As this article will demonstrate, tribal courts have elevated community interest and values when considering individual rights issues. Indeed, the ways in which those interests and values have been elevated may prove instructive to those who advocate a more balanced approach to First Amendment freedoms within the U.S. judicial system.

Part I of this article will examine the legal obligation imposed on

Indian tribes to protect certain individual rights. The article will first examine whether the First Amendment applies to Indian tribes, and then whether and how the Indian Civil Rights Act applies. In Part II, the article will analyze how federal courts have interpreted the Indian Civil Rights Act. Part III will survey Indian tribal court decisions concerning individual rights issues such as free speech, free press, and free exercise of religion. In the final part of the article, the analysis will turn away from reported tribal court decisions and focus on tribal political, social, and cultural issues relating to First Amendment-type rights. In this respect, the article will focus exclusively on the nine tribes of South Dakota, exploring how First Amendment-type issues have arisen within those tribes and how they have been resolved outside of the judicial system.

II. THE APPLICABILITY OF THE FIRST AMENDMENT TO INDIAN TRIBES

A. General Constitutional Applicability

The First Amendment to the United States Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the people peaceably to assemble, and to petition the Government for a redress of grievances." (1) The question of whether this Amendment applies to Indian tribes depends first on whether the U.S. Constitution in general governs Indian tribes. (2) In a series of cases stretching over more than a century, the Supreme Court has answered this question in the negative.

In Talton v. Mayes, (3) the Court, presented with the issue of whether the Fifth Amendment to the U.S. Constitution applied to local legislation of the Cherokee Nation, recognized that the Amendment acted as a limitation only upon the powers of the national government. (4) The controlling issue was whether the powers exercised by the Indian Tribe are derived from the Federal Constitution, or whether they are local powers not created by the Constitution, and thus not subject to the U.S. Constitution. (5) Based on a long line of precedent, the Talton Court concluded that because tribal governments occupy a "semi-independent position," having exercised local self-government prior to the establishment of the Constitution, they are not subject to the limitations imposed by the Constitution. (6) Thus, the Constitution does not apply to tribal governments when the powers being exercised are not federal powers. (7) Moreover, this principle has been consistently reaffirmed since Talton. (8)

In ruling upon whether the Equal Protection Clause of the Fourteenth Amendment applies to tribal governments, the Court in Santa Clara Pueblo v. Martinez, (9) reiterated that because tribes were "separate sovereigns pre-...

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