Where does the Indian Civil Rights Act of 1968 take place?

Answer 1

The ICRA was intended to apply to governments of American First Nations (what we unfortunately call "tribal governments"). The Act nearly mirrors the federal Bill of Rights except in three or four instances. 1) The ICRA has no counterpart provision for the federal Establishment Clause, which prohibits the federal government from taking actions that serve to establish an official religion. The reason the ICRA does not have the couterpart provision is that some tribes in 1968 were theocratic (governed by religious leaders), so those tribes lobbied against including that provision in the ICRA. Theocracratic government in Indian Country is declining for a variety of reasons. 2) The ICRA has no counterpart to the federal "right to counsel" provision. This provision was excluded from the ICRA simply because many, if not most, tribes could not have afforded to provide public defenders. This also is changing for a variety of reasons. 3) The ICRA does not include a "right to bear arms" provision. In 1968 most tribes neither prohibited nor expressly allowed bearing arms, so it seems the congressional drafters of the ICRA simply got confused about a more general notion -- that the US didn't want to encourage a policy of Indians bearing arms. The biggest difference between the ICRA and federal Bill of Rights is that the federal BOR applies in a variety of contexts, criminal, regulatory,and civil. However, if the ICRA is violated, the only federal enforcement that the Act provides is a "writ of habeas corpus", which in Latin means "present the person", and it requires the appearance in court of a person who is being detained or imprisoned by a tribe. In other words, federal enforcement of the ICRA is limited to the criminal context. Outside the criminal context, the Act presumably applies to Tribes' governments, but without any mechanism for federal enforcement. Like any government, tribe governments can violate civil rights. Some tribe courts apply the ICRA against the tribe's government, and some tribe courts apply the tribes own bill of rights (which most have in some form). Most tribe courts are still having a difficult time enforcing civil rights against their own tribe government actions, usually because of a mischaracterization and misunderstanding of a tribe sovereign immunity. Also, outside the criminal context, the question becomes whether the tribe has jurisdiction, a question which itself may be a federal question and thus may invoke federal jurisdiction and enforcement. So, the ICRA "takes place" in tribe's governments, when they legislate, enforce the law, administer their governments, and in their own tribe courts when they resolve disputes.

Answer 2

Alabama