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

• Author: Garry, Patrick M.

1. 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.

2. THE APPLICABILITY OF THE FIRST AMENDMENT TO INDIAN TRIBES

   1. 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-existing the Constitution, [they] have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority." (10)

      More recently, the Court in Nevada v. Hicks (11) stated that "it has been understood for more than a century that the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes." (12)

   2. Judicial Rulings on First Amendment Applicability

      Prior to passage of the Indian Civil Rights Act of 1968, (13) few cases dealt with the specific issue of whether the First Amendment of the Constitution applied to Indian tribes. In Native American Church v. Navajo Tribal Council, (14) the Tenth Circuit addressed the issue of whether an ordinance adopted by the Navajo Tribal Council prohibiting the introduction of, sale, use and possession of peyote in Navajo country violated the First, Fourth and Fifth Amendment rights of the Native American Church of North America and its members. (15) Recognizing previous decisions holding that the unique semi-independent status of Indian tribes prevents the application of the Constitution to the tribal governing bodies, the court stated that "[i]t follows that the Federal courts are without jurisdiction over matters involving purely penal ordinances passed by the Navajo legislative body for the regulation of life on the reservation." (16) Specifically referring to the First Amendment, the court acknowledged that the Amendment "applies only to Congress" and is "made applicable to the States only by the Fourteenth Amendment." (17) Therefore, given that "Indian tribes are not states," the First Amendment does not apply to them. (18)

3. CONGRESSIONAL IMPOSITION OF FIRST AMENDMENT NORMS ON INDIAN TRIBES

   The United States Supreme Court and lower federal courts have repeatedly recognized that although tribes have the authority to self-govern when exercising their tribal functions, "all such rights are subject to the supreme legislative authority of the United States." (19) Finding that "tribal members' basic constitutional rights [had] been denied at every level," Congress in 1968 passed the Indian Civil Rights Act (ICRA) as a rider to the Civil Rights Act of 1968. (20) Aside from some notable exceptions, the ICRA follows the Bill of Rights of the U.S. Constitution. (21) These individual rights, although not constitutionally imposed, became applicable to Indian tribes through congressional mandate. (22) According to one scholar, "[t]he central purpose of the ICRA was to apply most of the provisions of the Constitution's Bill of Rights to tribal governments[.]" (23)

   1. THE INDIAN CIVIL RIGHTS ACT

      The ICRA is composed of three sections: 1301, which provides definitions for "Indian tribe," "powers of self-government," "Indian court," and "Indian;" 1302, which sets out the constitutional rights protected under the Act; and 1303, which provides the remedy available for violations of the Act. (24)

      Section 1302 of the ICRA is known as the Indian Bill of Rights. (25) The first subsection of this section largely parallels the First Amendment to the United States Constitution. (26) In whole, it provides, "[n]o Indian tribe in exercising powers of self-government shall (1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances[.]" (27)

      The only specifically-mandated remedy provided by Congress under section 1301 of the ICRA is one of habeas corpus, which "shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe." (28) Even though the ICRA provided this limited federal remedy, federal courts initially "found that the ICRA had waived tribal sovereign immunity, and the courts regularly enjoined tribal governments and even awarded damages in ICRA cases." (29) In 1978, however, the Supreme Court abruptly reversed this practice of creating jurisdiction for ICRA claims in federal courts. (30) Declaring that "[t]ribal forums are available to vindicate rights created by the ICRA," Martinez put an end to federal court jurisdiction for ICRA civil violations. (31)

   2. THE GOALS AND PURPOSES OF THE ICRA

      Motivating passage of the ICRA was the congressional belief "that the American Indian is the most neglected minority group in the history of this Nation." (32) Seven years before its passage, the Senate Subcommittee on Constitutional Rights undertook an investigation of the legal status of American Indians, particularly "the problems [Indians] encounter when asserting constitutional rights in their relations with State, Federal, and tribal governments." (33) Senator Sam Ervin of North Carolina, the primary sponsor of the legislation, asserted "that the rights of Indians were 'seriously jeopardized by the tribal government's administration of justice,' which he attributed to 'tribal judges' inexperience, lack of training, and...