"The Indian Civil Rights Act has been a dismal failure, if one considers its original intent; to protect tribal members and others subject to tribal jurisdiction from arbitrary and capricious acts by the tribal governing body and individual tribal officials. That is, unless a tribe has adopted the rights set out in the ICRA as substantive tribal law with remedies beyond the restrictive “habeas corpus” Federal Court relief. Some tribes have adopted the substantive rights in the ICRA but extend civil remedies beyond the restrictive “habeas corpus” and even allow for monetary damages (only where the tribe is covered by insurance or other such indemnification). Those tribes are in the minority. Unfortunately many tribes still hide behind the tribe’s sovereign immunity as they commit arbitrary rights violations upon their own membership and others.

On point is the recent (pre-2010 ICRA amendments) case of Romero v. Goodrich (10th Cir. Ct. of Appeals), an appeal from a New Mexico Federal District Court denial of habeas corpus relief under the ICRA. Romero was tried in tribal court on 12 counts, all arising from the same incident. Romero was not shown the charges against him until the day of trial, the arresting officer acted as both prosecutor, and at times, defense counsel. Romero’s requests for legal counsel were denied several times. He never waived his rights. The court sentenced Romero to eight years incarceration in a federal corrections facility. After Romero challenged his incarceration by filing a Federal Petition for habeas corpus the tribal court commuted his sentence, but not before he served substantial time. While in federal detention in Colorado he got into an altercation with guards. He was tried and convicted of assault on a federal officer and sentenced to a federal term in prison. He is still in prison. But for the tribal sentence, issued in violation of the ICRA, Romero would not have been in the facility in Colorado."

Get the Story:
Harold Monteau: Indian Civil Rights Act Has Done Nothing for Individual Indians’ Rights (Indian Country Today 7/2)