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172 twenty Writing about the Indian Civil Rights Act for years the american civil liberties union struggled with what its policy should be regarding Indians. On the one hand, the ACLU recognized American Indians as an ethnic minority with a long history of oppression and exploitation. On the other, since the organization ’s purpose was to defend individual rights guaranteed by the Bill of Rights, the group had a hard time seeing where Indian rights fit into the constitutional framework. The ACLU saw the Indian issue as a claim for group rights, which the organization has never advocated. The ACLU board was almost entirely urban, and largely eastern, so there was little familiarity with tribal values and general ignorance of Indian treaty rights, especially applied to hunting and fishing. With the onset of the Pacific Northwest fishing disputes in the 1960s, the national organization was called on to develop a position on Indian rights. As other Indian issues continued to arise throughout the West, the ACLU formed an Indian Rights Committee, tasked with formulating policies to serve the national organization. The committee was based in Denver and consisted of about a dozen people knowledgeable about Indian issues, including a number of Indians. I was appointed to the committee when it was established in 1973, and we almost immediately began grappling with the 1968 Indian Civil Rights Act.1 The Indian Civil Rights Act was passed in response to congressional concerns that Indian tribes were not constrained by the Bill of Rights, which applied only to the federal and state governments. There had writing about the indian civil rights act 173 been incidents on reservations where tribal governments had denied due process, or had punished free expression, or had subjected members to criminal penalties without affording them the rights that nonIndians had under the U.S. Constitution. After conducting hearings around the country, the Constitutional Rights Subcommittee of the Senate Judiciary Committee drafted legislation that, for the first time, would require Indian tribal governments to protect individual rights. The Senate Judiciary Committee concluded that Congress should not impose the same obligations on tribes as those required of federal and state governments. Adjustments were made to tailor the act to fit the circumstances of tribes and to avoid wholesale imposition of the American constitutional system. For example, the act protected the right of a criminal defendant to the assistance of counsel, but said this would be at the expense of the accused. This provision was inserted because of Congress’s reluctance to saddle impoverished tribes with the cost of providing attorneys in criminal cases. The act did require tribal governments to respect the right to free speech and the free exercise of religion, to protect against unreasonable search and seizure and selfincrimination , and to afford criminal due process, equal protection, and the right to a jury trial. But the Indian Civil Rights Act provided only a single remedy to an aggrieved person: habeas corpus, the ancient writ that requires a governmental officer to come before a court and justify holding anyone against their will. Almost immediately after the act went into effect, lawsuits were filed against tribes. These were not just habeas corpus actions, but civil rights suits seeking every conceivable remedy; declarations that a tribal action was illegal, money damages, and injunctions to prohibit or force a tribal government to act or to desist from acting. The ACLU began regularly receiving requests for legal representation from tribal members who wanted to sue their tribe. It was with this in mind that our Indian Rights Committee tried to draft principles to guide the organization. The committee discussions soon revealed a profound schism among the committee members. Ardent civil liberties advocates argued for a sweeping enforcement of the act against tribes. The most articulate of these was a recent Harvard Law School graduate named Joseph De Raismes, who was legal counsel to the mountain states office of the ACLU. But those of us who were tribal advocates insisted on a more 174 writing about the indian civil rights act measured approach. The discussions were long and heated, but they were also productive. Gradually, we hammered out a policy that was eventually adopted by the national organization. The policy called for the ACLU to support the right of the Indian people to their land base and its natural resources, to self-government, to retention of cultural and religious heritage, and to protection of treaty rights. Our policy mandated that in determining a position on...


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