Federal constitutional protections of personal freedoms, commonly considered "fundamental, inherent rights, common to all men", have long been denied to Indians in the tribal setting. This anomaly has been the subject of somewhat confused Congressional response causing heated debate and deep divisions within Indian communities. President Nixon stated in his recent address on Indian Affairs, that "the first and most basic question that must be answered with respect to Indian policy concerns the historic and legal relationship between the Federal Government and Indian communities". He also accurately warned, however, that "both as a matter of justice and as a matter of enlightened social policy, we must begin to act on the basis of what Indians themselves have long been telling us." The story of recent Congressional attempts to alter the relationship between Indians and the Federal Bill of Rights underscores the difficulty of this undertaking.

Tribal Sovereignty and Personal Freedoms

An important feature of the legal status of American Indians is tribal sovereignty, the conception of tribes as independent, autonomous governments. Tribal sovereignty was early acknowledged in the landmark case Worcester v. Georgia (1832), wherein Justice John Marshall described Indian tribes as "distinct, independent, political communities" with the rights of selfgovernment. The United States Commission on Civil Rights 1961 report, Justice, pointed out that the sovereign nature of Indian tribes "has been confirmed and reconfirmed in numerous cases; some of recent vintage. While the Indian's right to self-government is firmly rooted in treaties and judicial decisions, the right itself has been held inherent; that is, it preceded and was not created by the Federal Government."

One controversial attribute of tribal sovereignty has been the denial of Federal constitutional protections to Indians in their relations with tribal governments. "Many important prohibitions, including the Bill of Rights of the Federal Constitution, are limitations only on the power of the Federal Government. Other prohi bitions limit the activities of state governments only, or of the Federal and state government, and hence are inapplicable to Indian tribes, which are not creatures of either the Federal or state governments." This doctrine of constitutional immunity was originally established in the case Talton v. Mayes (1895) involving a contention that a tribal jury of five persons was insufficient to constitute a grand jury under the fifth

amendment to the Federal Constitution. The Supreme Court ruled that although Congress possessed the power to regulate the exercise of tribal self-government it had not done so with regard to criminal due process protections and that ". . . as the powers of local selfgovernment enjoyed by the Cherokee nation existed prior to the Constitution, they are not operated upon by the Fifth Amendment, which . . . had for its sole object the control of powers conferred by the Constitution on the National Government."

The limited number of cases involving the alleged denial of constitutional rights in tribal courts heard by the Federal courts since Talton has continued, but for two exceptions, to apply the doctrine of constitutional immunity despite the fact that in the interim [1924]

all Indians became American citizens. This precedent was recently followed, for example, when an Indian unsuccessfully attempted to challenge his tribal conviction to Federal court on the ground that he had right to counsel. . . ."the provisions of the Federal Constitution guaranteeing due process and the right to counsel do not apply in prosecutions in tribal courts".

Immunity from constitutional restrictions has been applied to various facets of tribal activity but perhaps none so important to the life of the tribe, as well as the personal freedom of the individual, as those involving the relationship between tribal government and religious freedom. In one such case members of the Native American Church challenged a Navajo tribal ordinance

prohibiting the use of peyote, an intoxicating cactus derivative used by the church members for sacramental purposes. Relief was denied because "no provision in the Constitution makes the first amendment applicable to Indian nations nor is there any law of Congress doing so". More serious religious infringements were considered in Toledo v. Pueblo de Jemez (1954), an attempt by tribal members to protect their religious activity under the civil rights acts. The plaintiffs, members of various Protestant denominations, complained that the governing body of the Pueblo had denied them various tribal services, had prohibited them from building a church on communal land, and had subjected them to assorted threats and reprisals because of their religious beliefs. The court invoked the immunity

doctrine even though it acknowledged that the alleged acts constituted "serious invasions of religious liberty."

Unfortunately a reading of these cases has led some observers to incorrectly conclude that tribal governing bodies lack all regard for personal liberties. In fact, given the enormous traditional value placed on tribal and group interests, as opposed to individual interests, as well as the serious lack of training and adequate funds, tribes have, by and large, established an impressive level of fairness. Helen Peterson, past Executive Director of the National Congress of American Indians, described, in the following manner, her visit to a Sioux tribal court where she listened to the tribal judge

in both English and the Dakota language, carefully read the tribal code and carefully inform the defendant of what his rights were, and then, more importantly, look into the whole family situation so that there was real justice and real opportunity for the people who came to his court to have the best opportunity to restore their dignity and for these people to fit into the society....

"There is a lot of evidence", she concluded, "that those Indian systems have a great deal more justice in them, and that they work a great deal better than the white man's courts in those towns bordering the reservations where prejudice and discrimination are as acute and shameful as we find against any people in any part of the country."

Many of the approximately 250 formally organized tribes have constitutions with bill of rights provisions (sometimes containing protections not yet available in many State courts) patterned after the Federal model. The Mescalero Apache Constitution, for example, states that members.

...

shall have equal political rights and equal opportunities to participate in the economic resources and tribal assets, and no member shall be denied freedom of conscience, speech, religion, association or assembly, nor shall be denied the right to petition the tribal council for redress of grievances against the tribe.

The Bureau of Indian Affairs and private organizations like the National Indian Court Judges Association have been instrumental in helping tribes bring their administration of justice up to date with modern methods and procedures.

Of course violations of personal freedoms occur under all governments and are not limited to the tribal setting. But when they occur through State or Federal

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activity there normally are channels available through which a challange will receive independent consideration. Tribal decisions, on the other hand, are not appealable to State or Federal courts and the rights of tribal Indians must be enforced in tribal courts if at all. Tribal appellate procedures are often nonexistent or inadequate. Commonly the trial judge sits to rehear the case on appeal. In some instances the appellate court is composed of tribal council members-the very persons whose actions are being challenged.

Congressional Response-the 1968 Indian Bill of Rights

Beginning in 1961, the relationship of Indians with tribal governments became the focus of Congressional inquiry. The Constitutional Rights Subcommittee of the Senate Judiciary Committee held extensive hearings on proposed legislation to remedy the situation. An early proposal provided for a blanket extension of the entire Federal Bill of Rights to the tribal setting:

...

any Indian tribe in exercising its powers of local self-government shall be subject to the same limitations and restraints as those which are imposed on the Government of the United States by the United States Constitution.

This proposal met serious objections from witnesses who viewed it as a threat to traditional Indian culture and who questioned the desirability of imposing on tribal governments alien legal forms and procedures. A witness for the Department of Interior voiced this objection in the following manner:

The Constitution of the United States was adopted by a people whose philosophical and political roots were deeply embedded in the history of England of Western Europe. Many of the restraints and limitations on the United States contained in the U.S. Constitution were an outgrowth of the history. On the other hand, the people of the Indian tribes have their roots in an entirely different culture and it may be that the devices which appropriately protected the interests of the Anglo-American of the late 18th century may not be appropriate to protect the Indian tribal member of the middle 20th century.

Certain aspects of tribal self-government would have been particularly vulnerable to the above proposal. The governments of the more traditional Pueblos are theocracies in which religious leaders play a leading role by selecting the governing officials and imposing cer

tain sanctions. In some cases tribal members are required to participate in religious customs. These governments would never pass the test of the separation of church and state decreed by the first amendment. An equally serious threat was posed by the 15th amendment which prohibits the denial of the right to vote on the basis of race. It was feared that this would thwart the tribe's legitimate interest in restricting voting to tribal membership-defined, at least in part, by criteria of blood quantum.

On the basis of these and similar objectives, the subcommittee eventually adopted an alternative version enumerating particular protections for tribal Indians which became Title II of the 1968 Civil Rights Act. Commonly known as the Indian Bill of Rights, it prohibits tribal governments from abridging the freedoms of religion, speech, press, or assembly; conducting unreasonable searches and seizures; subjecting criminal defendants to double jeopardy or self-incrimination; taking private property without just compensation: denying a criminal defendant the right to a speedy and public trial, or the right to counsel; requiring excessive bail or fines or imposing cruel and unusual punishment (maximum punishment in an Indian court for any of fense is limited to $500 fine and 6 months imprisonment); denying equal protection of the law or due process of law; passing bills of attainder or ex post facto laws; denying the right of a jury trial of not less than six persons.

The act is patterned closely after the Bill of Rights but differs from its Federal counterpart in certain fundamental respects. Although it ostensibly protects religious freedom, it does not prohibit the establishment of religion. As noted above, this omission was necessary to prevent the total disruption of some of the more traditional Pueblo tribal structures. A vigorous enforcement of even the limited version will have harmful results, however, because it is questionable whether complete individual religious freedom is compatible with a deeply religious political system.

Another important area in which the Federal model has been altered is the right of counsel. This is guaranteed by the act only at the defendant's own expense in contrast with recent developments in some jurisdictions which have expanded the right to counsel under the Federal Constitution to entail the right of an indigent misdemeanor defendant to have counsel provided at the Government's expense. The cost of providing legal representation would be an impossible burden for many tribes to meet. There is considerable doubt whether guaranteeing the right to professional legal

representation, even at the defendant's own expense, is necessary or desirable. The common practice of allowing defendants to be counseled and represented by tribal members familiar with tribal law and custom is for the most part preferable to imposing on trial courts professional attorneys unfamiliar with tribal procedure and unable to speak the language. There is a widespread fear that such an innovation may "seriously complicate the usually informal Indian proceedings and in the long run harm rather than help the cause of law and order in many Indian communities".

The impact of the act-whether it will have destructive or desirable results-will depend on the willingness of the courts to apply it with due regard to Indian culture, history, and values rather than considering themselves bound by Anglo-American interpretations of its language. Due process of law and equal protection of the law are vague concepts which will easily lend themselves to innovative and sensitive application if the courts are so inclined. Reluctance in this respect would be disastrous for many tribes. For example, 15 of the Southwest Pueblos lack any written codes or constitutions. This would cause serious problems if the due process clause is applied, as it is in the AngloAmerican legal system, to require that criminal conduct be proscribed in language that "conveys sufficiently definite warnings as to the proscribed conduct when measured by common understanding and practice". Will the Federal courts in construing the clause be mindful of the fact that in the small (some Pueblos have populations of only a few hundred), informal, close knit Pueblo societies there may be adequate common understanding about standards of conduct without the need for codification. Even in those cases where Pueblos have adopted written constitutions and codes there remain sacred aspects about the tribe's religious life where unwritten laws are administered by the Pueblos officers, religious leaders, and elders. These traditional areas are crucial to Indian society and their disruption would unnecessarily jeopardize the life of the tribe itself.

Similarly, serious difficulties would be created by an indelicate enforcement of the act's equal protection clause. Major tribal decisions are commonly made on the basis of percentage of Indian ancestry and entitlement to various tribal services, tribal voting rights (as noted above), and the right to inherit tribal property are also tied to a racial standard. It has rightfully been stated that "a complete prohibition of racial distinctions in defining those eligible for various participating

roles in the tribe would destroy the tribe as it has been known”. It is important that in enforcing this section of the act the courts acknowledge the legitimacy of tribal self-preservation by upholding racial classifications reasonably geared toward this end. On the other hand, in some instances racial standards are used within the tribal unit in a manner less crucial to the preservation of the tribe's ethnic identity. Some tribes, for example, require a higher degree of Indian ances. try for entitlement to certain tribal benefits (e.g., communal grazing rights) than is required for tribal membership. These kinds of distinctions, if the equal protection clause is to have any meaning at all, would appear to be prohibited by the act. As one commentator has stated, nonIndians have no right to share in the tribal community and the tribe should be free to apply its own cultural [and racial] standards to determine tribal membership, "but once the individual has been defined as being within the cultural group, or has been allowed to develop a substantial stake in it-especially insofar as he is ethnically related to the tribe-his official status ought not to be affected by blood distinctions".

Indian Reaction to the Act

Last December staff members of the U.S. Commission on Civil Rights met with Indians from various parts of the country to discuss, among other things, the 1968 act. The discussion on this topic revealed a deep division of views. Robert Burnette, a Rosebud Sioux long active in civil rights work, voiced strong support for it. He stated that tribal constitutions are basically unconstitutional and that they often prohibit religious freedom and due process of law:

No tribe in this country has a separation of administrative powers and executive powers from the legislative powers. So we have a conglomeration of a political head there that has been in strict control of everything that is there. Often when tribal courts have a tough decision the judges, who are unqualified for the job in the first place, run to the tribal chairman to seek his advice.

Mr. Burnette concluded that there is a strong need for the 1968 act as well as a uniform code of Indian offenses called for by the act.

Miss Leslie Chapman, a Laguna Pueblo law student at the University of New Mexico, took strong exception to Burnette's comments. She argued that to say Indians do not get due process or that tribal judges are unqual