TBL Chapter 11

CHAPTER 11: INDIVIDUAL RIGHTS AND INDIAN LAW

A. RIGHTS OF INDIANS

1. INDIANS AND THE FEDERAL GOVERNMENT

  • Constitutional Rights of Indians

    • Indians are entitled to the same constitutional rights as any other person under the federal government.

    • The protections of the Bill of Rights extend to "persons," which includes Indians.

  • Distinct Legal Treatment

    • Congress and the courts have established a special body of law for Indians.

    • Disparities in treatment have led to equal protection challenges under the Fifth Amendment, which the Supreme Court has uniformly rejected.

  • Key Case - Morton v. Mancari (1974)

    • Holding: The Supreme Court upheld a statutory "Indian preference" in hiring within the Bureau of Indian Affairs (BIA).

    • Reasoning: The preference serves a legitimate governmental purpose in aiding Indian self-government.

    • The Court stated:
      > "…every piece of legislation dealing with Indian tribes… single out for special treatment a constituency of tribal Indians…"

  • Political vs. Racial Preference

    • The Court clarified that the Indian preference applies only to members of "federally recognized" tribes, emphasizing its political nature rather than a racial classification.

    • Reference: 417 U.S. at 552-53 & n. 24.

  • Extension Beyond the BIA

    • The Indian preference applies to any position in the Department of the Interior that relates to services for Indians (Indian Educators Federation Local 4524 v. Kempthorne, 2008).

  • Equal Protection Challenges

    • Challenges arising from the distinction in criminal and civil jurisdiction based on Indian status have also failed, as shown in:

    • United States v. Antelope (1977)

      • Indian defendants prosecuted under federal law for actions committed in Indian country faced different standards than non-Indians.

      • The Supreme Court ruled that the jurisdictional distinction based on Indian status did not violate equal protection rights.

    • Means v. Navajo Nation (2005)

      • The classification of members of recognized tribes as a legitimate political category, not racial discrimination.

  • Employment Services Requirement

    • In Greene v. Commissioner (2008), a requirement for off-reservation tribal members to use tribal employment services for assistance was upheld.

    • Court applied the rational basis standard, serving tribal self-government and culturally relevant service needs.

  • Classifications Permissible

    • Separate classifications for Indians are permissible even if not connected to self-government.

    • Cases Involving Construction Contracts

    • The government has allowed preferences for Indian and Alaska Native firms in contracts based on rational connections to the government's trust responsibility toward Indians (American Federation of Government Employees v. United States, 2003; Alaska Chapter v. Pierce, 1982).

  • Exemption from Title VII

    • The employment preference exception to Title VII of the Civil Rights Act of 1964 permits tribal distinctions without violating equal protection (EEOC v. Peabody Coal Co., 2014).

  • Recent Challenges

    • Haaland v. Brackeen (2023)

    • Challenged the constitutionality of the Indian Child Welfare Act's (ICWA) placement preferences, with the Supreme Court dismissing the equal protection claims for lack of standing.

    • The discussion raised implications about racial factors in the determination of Indian status.

  • Religious Freedom Context

    • American Indian Religious Freedom Act (1978)

    • Mandates protection of Indian traditional religions, including access to sacred sites and possession of sacred objects.

    • Executive Order 13007: Directs agencies to accommodate access to religious sites.

    • Enforcement Challenges

    • Courts often require proving violations of established First Amendment rights rather than acknowledging special Indian law.

    • Lyng v. Northwest Indian Cemetery Protective Association (1988)

    • Supreme Court ruled that government development of land sacred to tribes does not necessarily violate free exercise unless coercive.

      • Quoting: > "…the Constitution simply does not provide a principle that could justify…upholding respondents' legal claims."

    • Impact of Employment Division v. Smith (1990)

    • Supreme Court ruled that generally applicable laws inadvertently impacting religion cannot lead to free exercise claims.

    • Congressional Response - Religious Freedom Restoration Act

    • The Act imposes strict scrutiny on government actions burdening religious exercise.

    • Recent Trends in Case Law

    • Federal courts remain indifferent to emotional distress claims that do not infringe upon physical practices (Navajo Nation v. U.S. Forest Service, 2008).

    • Courts have deemed specific prohibitions against ceremonial activities valid if not physically coercive.

  • Federal eagles protection law

    • Exceptions for tribal religious use upheld in court if reasonably restricted (Gibson v. Babbitt, 2000).

B. RIGHTS OF INDIANS AND THE TRIBES
1. The Constitution and the Tribes

  • Constitutional Status

    • Tribes are not federal entities or states; hence the Bill of Rights and Fourteenth Amendment do not apply fully.

  • Distinct Sovereignty

    • Tribes possess sovereign powers independent of federal structures.

  • Supreme Court Precedent

    • Talton v. Mayes (1896): Constitutional protections do not extend to tribal governments.

    • Wheeler (1978) clarified that tribal sovereignty allows independent criminal prosecutions.

  • Congressional Reforms - Indian Civil Rights Act (1968)

    • Established protections for individual rights within tribal governance.

    • Contains clauses restricting tribal powers to enact laws infringing upon civil rights, mirroring many provisions of the U.S. Constitution.

    • Notable exclusions include lack of prohibition against establishment of religion, and tribal obligations for legal counsel.

C. General Observations

  • The evolving legal context reflects the complex nature of rights related to Indian tribes and individual Indians, often requiring nuanced interpretations of both tribal and federal law. Additionally, challenges arise regarding enforcement due to the unique status of tribes as sovereign governments. Issues surrounding jurisdiction, protections of individual civil rights under tribal law, and relations with non-Indians introduce layers of complexity to any legal analysis pertinent to Indian law and rights.