Fletcher on Free Speech and Tribal Law

My chapter, “Resisting Congress: Free Speech and Tribal Law,” from our book, The Indian Civil Rights Act at Forty.

Here is the abstract:

Congress codified the unsettled tension between American civil rights law and American Indian tribal law, customs, and traditions in American Indian communities by enacting the Indian Civil Rights Act (ICRA) in 1968. Concerned that individual rights were receiving short shrift in tribal courts and by tribal governments,Congress chose to apply a modified form of the Bill of Rights on tribal governments. In other words, Congress chose to impose American legal norms on Indian governments in order to protect those under tribal jurisdiction.As it had done previously in statutes such as the Indian Reorganization Act, Congress affirmatively sought to displace tribal law — and all the attendant customs and traditions, as well as Indian values — with American law. Ironically, after the Supreme Court interpreted ICRA in 1978, this law could only be interpreted and enforced by tribal courts. Tribal law and American civil rights law have been at odds in many tribal communities ever since, as tribal voters, legislatures, and courts have struggled with how (and whether) to apply American civil rights law in Indian country.

In this chapter, I explore several questions relating to tribal courts, tribal governments, and the Indian Civil Rights Act. For example, do tribal decision makers (i.e., voters, legislatures, and especially courts) deviate from the state and federal government and court interpretations of the Bill of Rights in applying ICRA; and if so, how much and in what way? Do tribal decision makers apply or incorporate tribal law, customs, and traditions into their decisions relating to civil rights under ICRA (and tribal laws that incorporate ICRA’s provisions); and if so, how? Are tribal decision makers truly bound by the provisions of the ICRA?The last question begs a final question: Does Congress have authority to force tribal decision makers how to decide civil rights disputes?

This entry was posted in Author: Matthew L.M. Fletcher, Scholarship, Tribal Codes, tribal constitutions, tribal courts and tagged , , , , , , . Bookmark the permalink.

One Response to Fletcher on Free Speech and Tribal Law

  1. Harold Monteau says:

    Here in NM the “tug of war” between individual tribal member rights and “tribal cultural control” is rather heightened. The Pueblos, whether constitutional governments or not are still very, very influenced and some would say controlled by cultural-religious-traditional law. One recognizes that that element of control may be what substains the cultural integrity but which can be “harsh” as to individual rights. It does not appear that a balance can be struck as members have to choose to live under the regime or not, and if not, leave. I’ve come to the conclusion that traditional law maintains cultural integrity and identity and anglo law has very little place in it. Having said that, when the Pueblos venture our of traditional remedies, such as sentencing people to incarceration for several years, the integrity of the traditional law and the “social contract” it is based on, begins to erode. Not sure at all where it is all heading.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s