The Indian Civil Rights Act, popularly known as the “Indian Bill of Rights,” was adopted as Title II of the Civil Rights Act of 1968. The most important provisions limit the power of tribal governments by applying portions of the federal Bill of Rights to Indian tribes, thus limiting tribal sovereignty.
The Supreme Court had held in Talton v. Mayes (1896), that Indian tribal governments were not subject to restraints placed on the federal and state governments by the Constitution and the Bill of Rights. The Indian Bill of Rights extends ten restrictions derived from the U.S. Bill of Rights and other parts of the Constitution. These comprise: freedoms of speech, press, assembly, petition, and religion; security against unreasonable searches and seizures, accompanied by the requirement of a search warrant; freedom from double jeopardy; guarantees against self‐incrimination, excessive bail and fines, and cruel and unusual punishment; prohibition of taking private property without just compensation; in modified form, the criminal‐procedure protections of the Sixth Amendment; the due process and equal protection clauses; prohibition of bills of attainder and ex post facto laws; and guarantee of a six‐person criminal jury trial (see Trial by Jury). Congress deliberately chose to limit its incursion into tribal sovereignty by omitting certain other securities, such as the right to a republican form of government (see Guarantee Clause), the ban on religious establishments, the requirement of free counsel for indigent criminal defendants, the right to jury trial in civil cases, (see Civil Law) and the privileges and immunities clauses.
In Santa Clara Pueblo v. Martinez (1978), the Court upheld Congress's authority to impose the Indian Bill of Rights but held that federal enforcement authority is limited to habeas corpus jurisdiction on behalf of persons in tribal custody. The Court held that Congress had not limited the tribes' immunity from suit, so the act cannot be enforced directly against them. Thus, the Indian Bill of Rights is primarily enforceable in tribal forums.
See also Native Americans.
— Rennard J. Strickland
