TWO YEARS BEFORE President Richard Nixon’s speech, in 1968, Congress had enacted the Indian Civil Rights Bill in an effort to ensure that the freedoms enjoyed by other Americans were also respected by tribal governments. Essentially, it required that the tribal governments enforce most of the basic principles of the Bill of Rights, including free speech, freedom of the press, freedom of assembly, the right to a speedy and public trial, and due process; no tribal court, the act declared, shall “deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.” However, Congress significantly modified the provisions of the bill to take account of certain tribal customs, for example, guaranteeing the free exercise of religion, but not prohibiting its establishment. Nor, with deference to limited tribal budgets, did Congress require tribes to provide free counsel for the accused or a jury trial in civil cases.
Congress failed to take into account the practical application of the act’s provisions in the bareknuckle arena of tribal politics. Nor did it appropriate any money for its enforcement. Even with its limitations, however, the Indian Civil Rights Act was an important step in extending the principles of civil rights across Indian country. But the act became a virtual dead letter just ten years after its passage, with the Supreme Court’s landmark decision in Martinez v. Santa Clara, which perhaps more than any other single event revealed the fundamental moral contradiction that lies at the heart of modern Indian policy, as well as the practical dilemma of a government that has simultaneously committed itself to civil rights and to the inexorable logic of tribal self-determination, in which the rights of individual Indians (who also happen to be U.S. citizens) are secondary to the will, and to the increasing power, of the tribe.
In 1986, the Department of Justice informed the U.S. Civil Rights Commission that in the seven years prior to the Martinez decision, the department had received some 280 complaints of violations of the Indian Civil Rights Act by tribal governments. After Martinez, the number dropped precipitously, not because there were fewer abuses, but because the department had made clear that it would do nothing to address them. Between 1978 and 1975, the department received only forty-five complaints against tribal governments, typically accusing tribal officials of failing to allow defendants’ attorneys to appear in tribal court, failing to allow defendants to be heard in court, denying trial by jury, interfering in elections by tribal councils, as well as fraud, nepotism, and discrimination in tribal housing. The victims needn’t have bothered. James M. Schermerhorn, an official of the department’s Civil Rights Division, informed the commission, “No effort has been made, post Santa Clara, to invoke the jurisdiction of the federal court.”
“Not one Federal dollar has been spent on the enforcement of fundamental civil rights of American citizens domiciled on reservations since the 1978 Supreme Court decision, Santa Clara Pueblo v. Martinez,” the U.S. Commission on Civil Rights reported in 1991.