Harold Monteau’s recent op-ed on ICRA – labeling it a “dismal failure” in protecting the rights of individual Indians — is thought-provoking, to say the least. While I agree generally, I have two points in response, one of which is probably irrelevant.
First, to say that Congress intended ICRA to protect individuals from the arbitrary and capricious acts of tribal governments is a half-truth. Sen. Ervin intended ICRA to be a tool of civilizing, or assimilating, or whatever the term is when a more powerful government uses its power in an effort to make a less powerful government in its own image (absent the power, of course). In this regard, it was an almost instantaneous success. As David Getches wrote in the 1978, ICRA westernized ( actually, I prefer Americanized; others say “more Anglo”) tribal courts even where those courts didn’t see ICRA as legitimate law. Now tribal courts, with very few exceptions, are westernized … where they exist. Tribal governments without tribal courts are practically by definition not westernized governments (I don’t know what they are, because many don’t really act like governments at all, while many do). I think ICRA will fade away over time as tribal governments adopt their own version of laws that protect individuals, but it’ll take a while.
I agree that Monteau is probably right that ICRA hasn’t been a great success at guaranteeing individual rights in Indian country. I think his example, the Romero case, is probably an outlier case. He’s in jail still only because he was illegally in jail in the first place, says Monteau. Yes, but his tribal court conviction was struck under ICRA eventually (once the feds intervened and the tribal council backed down). It’s not perfect, and maybe it’s even tragic, but still unusual. People like Barbara Creel and Harold Monteau worked to limit the damage.
Second, where ICRA fails is where tribal governments fail. Those tribal governments that don’t have effective justice systems and those tribal governments that don’t effectively waive immunity in tribal courts are the tribal governments that make ICRA toothless. Disenrollments, railroaded criminal convictions, bad business deals, political firings of tribal government employees, whatever the case may be — many of these abusive tribal actions are unreviewable under ICRA or any statute.
I commend Monteau for highlighting ICRA, and I tend to agree with him that ICRA can be relatively easily circumvented (or ignored) by tribal governments intent on being bad actors.