Tribal courts' failure to protect Native American women: a reevaluation of the Indian Civil Rights Act.

• Author: Christofferson, Carla

Congress has always exercised control over Native American(1) peoples through its plenary powers.(2) In 1968, that control took the form of the Indian Civil Rights Act (ICRA).(3) The ICRA represents a congressional decision to limit Native American sovereignty by setting forth an Indian Bill of Rights that applies to Native American tribes.(4) It is Congress' effort to protect individuals from tribal abuses. By designing a special Indian Bill of Rights,(5) Congress recognized that Native American tribes were distinct sovereigns, but it placed limits on how they could exercise such sovereignty.(6)

Although the central purpose of the ICRA is to "protect individual Indians from arbitrary and unjust actions of tribal governments,"(7) the Supreme Court limited this protection in Santa Clara Pueblo v. Martinez by ruling that habeas corpus is the only mechanism of judicial review provided by the ICRA.(8) In providing no remedy for civil rights violations, the Santa Clara ruling has left Native American women virtually paralyzed within a system that subordinates women.(9)

This Note argues that an expansion of the ICRA is necessary to protect Native American women from discriminatory actions by their tribes. One Native American woman has stated: "My only crime is being born a female. I want the same rights as the men--the right to vote for a chief and the right to live on the reservation."(10) Women who are discriminated against because of gender-biased tribal membership codes suffer both financially and psychologically. They no longer receive federal Indian benefits, such as annuities from the tribe, access to education and health programs, and housing.(11) Moreover, they suffer the loss of their cultural identity, because they lose the right to live on the reservation with their family and friends.(12)

Part I of this Note examines the limitations on Native American sovereignty and the passage of the 1968 Indian Civil Rights Act, in which Congress endorsed the concept of limited tribal sovereignty. Part II examines the Supreme Court's attempt to establish firm sovereignty boundaries in Santa Clara Pueblo v. Martinez.(13) This Note goes on to argue that the denial of a federal forum in Santa Clara renders the ICRA inadequate to protect the rights of Native American individuals. Part III describes how the ICRA in its present form fails to safeguard the rights of Native American women. It argues that an expansion of the ICRA is needed to remedy the gender discrimination facing women within tribal systems. Finally, Part IV proposes an amendment to the Indian Civil Rights Act designed to empower the Native American women in their struggle to secure equal rights within the tribal system. The amendment provides specific gender protection to Native American women within their tribe and gives the women a forum in which to bring their grievances.

1. The Indian Civil Rights Act: Toward Tribal Sovereignty

   In 1968, Congress passed the Indian Civil Rights Act.(14) The ICRA recognized the tribes' sovereignty and their inherent right to govern the Native American peoples, but it stated that tribes would still be subject to constitutional guidelines resembling the Bill of Rights.(15) Few Native Americans saw the ICRA as a protection of their individual rights against tribal violations. Instead, most Indians saw it as a federal intrusion into tribal affairs.(16)

   Congress stated that this "Indian Bill of Rights" was needed to protect individual Indians against abuses by the tribes(17) because Indians had no federal or state constitutional rights vis-a-vis the tribes.(18) In order to justify the imposition of these federally created rights, the ICRA restated the idea of limited sovereignty: Indian sovereignty exists alongside the plenary right of Congress to regulate and modify the status of tribes.(19) In this respect, tribal rights resemble the rights of the states.(20)

   In the years surrounding the passage of the ICRA, the Supreme Court struggled with the limits of tribal sovereignty. One attempt to define the scope of this sovereignty is the preemptive test, which was set out in Williams v. Lee.(21) In that case, the Supreme Court held a state law inapplicable if it infringed on a tribe's right to make its own laws and to be governed by them.(22) The Williams Court favored protecting tribal autonomy, but the 1978 Supreme Court limited tribal autonomy by holding in Oliphant v. Suquamish Indiand Tribe(23) that Indian tribes did not have criminal authority over non-Indians on the reservation except as permitted by Congress.(24) Three months later, the Court switched sides again in Santa Clara Pueblo v. Martinez.(25) By denying federal protection against gender discrimination to an Indian woman,(26) the Court refused to encroach upon the sovereignty of a tribe.

2. Santa Clara: Tribal Sovereignty Takes the Day

   Santa Clara Pueblo v. Martinez addressed the conflict between Indian autonomy and gender discrimination. Julia Martinez and her daughter challenged a Santa Clara Pueblo membership ordinance that disqualified Mrs. Martinez's children because Mrs. Martinez had married outside the tribe.(27) The membership ordinance placed no such restriction on men.(28) Martinez argued that the membership rule discriminated against her solely on the basis of sex, and therefore, the Act violated Title I of the ICRA. Title I states that "[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person within its jurisdiction the equal protection of its laws . . . ."(29)

   The Supreme Court considered three issues in Santa Clara: (1) whether tribes had waived their immunity to suit in federal court under the ICRA; (2) which court was the proper forum in which to challenge violations of the ICRA; and (3) whether habeas corpus relief was the only remedy available under the ICRA.

   1. Sovereign Immunity

      Although three months earlier the Court had limited the territorial sovereign powers of tribal governments,(30) the Court now chose to expand sovereignty by holding that "Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers."(31) The Court went on to state that a waiver of sovereign immunity must therefore be expressed unequivocally and cannot simply be implied.(32)

   2. Tribal Forum

      According to the Court, the ICRA recognized that tribes are in the best position to understand their own culture(33) and therefore modified the Bill of Rights to accommodate the "unique political, cultural, and economic needs of tribal governments."(34) Under this exclusive forum doctrine, federal courts should defer to the tribal courts' adjudication of civil matters.(35)

      However, a later decision read Santa Clara's exclusive forum doctrine narrowly. The Tenth Circuit in Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes ruled that if the tribal court fails to provide an adequate forum in which to address civil grievances, a federal court may assume jurisdiction.(36) Under this reasoning, Mrs. Martinez would have been allowed access to federal court, because her efforts in the tribal system had been prejudiced from the start.(37)

   3. Habeas Corpus

      In Santa Clara, the Supreme Court reasoned the Congress retained plenary power over the Indian tribes but hd, in passing the ICRA, provided only for habeas corpus relief.(38) Since Congress did not specifically include the remedy of judicial review for civil actions, the Court reasoned, federal courts have no right to interfere with the tribes' internal and social relationships.(39) However, in summarizing congressional intent, the Court declared: "[A] central purpose of the ICRA and in particular of Title I was to |secur[e] for the American Indian the broad constitutional rights afforded to other Americans,' and thereby to |protect individual Indians from arbitrary and unjust actions of tribal governments.'"(40) Upon examining congressional intent, it is hard to imagine that Congress wanted to protect individuals but was unwilling to provide a judicial remedy ensuring such protection. Nevertheless, according to the Court, the legislative history suggests that "Congress' failure to provide remedies other than habeas corpus was a deliberate one," and the Court was unpersuaded that fulfillment of the purposes of the ICRA requires intrusion into tribal sovereignty.(41)

      Santa Clara left Native American women a right without a remedy. The next part of this Note argues that Congress should resolve this quandary for Native American women. Then, Part IV process a remedy that establishes guidelines for amending legislation.

3. The Case for Expanding the Indian Civil Rights Act

   After the Santa Clara decision, Native American women could not rely on the protection of state and federal courts. Women denied tribal membership cost essential benefits of membership, including federal payments, education, and health services.(42)

   Congress could have remedied this problem immediately, as it had done when it passed the Major Crimes Act,(43) which reduced tribal sovereignty in response to the Crow Dog decision.(44) Indeed, the Supreme Court noted in Santa Clara that if the tribal courts prove inadequate to apply and enforce the ICRA, Congress could similarly exercise its plenary power and grant federal courts jurisdiction over civil rights violations.(45)

   1. Findings of the U.S. Civil Rights Commission

      The U.S. Civil Rights Commission recently held a series of hearings to determine whether the statutory duty to enforce the ICRA is being fulfilled.(46) Since Santa Clara, there have been 280 complaints of ICRA violations filed against Indian tribes.(47) Most of the tribes' self-governing powers center on the internal affairs of the community.(48) As a result, tribal membership and participation of women ae common targets of tribal ICRA violations. Therefore, Native American women need specific gender protection to guarantee them the rights enjoyed by...