PROTECTIONS IN THE TRIBAL SETTING - CONSTITUTIONAL IMMUNITY

In their relationship with the tribe, Indians are normally protected by a wide variety of criminal due process, civil rights and civil liberties protections contained in the tribal constitution and the tribal law and order code. By their own weight the Bill of Rights and the 14th Amendment to the United States Constitution do not impose limitations on tribal action and thus, do not confer protections on tribal members.

In the case of Talton v. Mayes (41) for example, the Supreme Court refused to apply the Fifth Amendment to invalidate a tribal law that established a five-man grand jury. In Glover v. United States, (42) the court stated that "the right to be represented by counsel is protected by the Sixth and 14th Amendments. These Amendments, however protect... this right only as against action by the United States in the case of the...Sixth Amendment...and as against action by the states in the case of the 14th Amendment, Indian tribes are not states within the meaning of the 14th Amendment."

Again, in the case of Native American Church v. Navajo Tribal Council, (43) it was held by implication that a tribal Indian cannot claim protection against illegal search and seizure by tribal officials. In 1954, an attempt to redress tribal invasions of religious freedom arose in a suit against the Jemez Pueblo Tribal Council and governor by Pueblo members, charging that they had been subjected to indignities, threats and reprisals solely because of their Protestant faith, and that the tribal council had refused to permit them to bury their dead in the community cemetery and to build a church on tribal land. (44)

The court acknowledged that the alleged acts represented a serious invasion of religious freedom, but concluded that the acts were not taken "under color of any statute, ordinance, regulation, custom or usage of any state or territory," and thus no cause of action arose either under the federal constitution or under federal civil rights acts.

In State v. Big Sheep, (45) the 10th Circuit refused to concede the application of First Amendment protections through the 14th Amendment to Indian tribes: No provision in the Constitution makes the First Amendment applicable to Indian nations, nor is there any law of Congress doing so. It follows that neither, under the Constitution or the laws of Congress, do the federal courts have jurisdiction of tribal laws or regulations, even though they may have an impact to some extent on forms of religious worship. (46)

NOTES:
41) 163 U.S. 376 (1896).
42) 219 F. Supp. 19, 21 (1963).
43) 272 F. 2d 131, 10th Cir. (1959).
44) Toledo v. Pueblo De Jemez, 119 F. Supp. 429 (D.M. Mex. (1954)).
45) 272 F. 2d 131 (1962).
46) 272 F. 131, p. 135.


Copyright 1999 Center for World Indigenous Studies (All Rights Reserved)
www.cwis.org