Matthew Fletcher: Addressing problems of Indian Civil Rights Act

"Harold Monteau’s recent op-ed on ICRA – labeling it a “dismal failure” in protecting the rights of individual Indians — is thought-provoking, to say the least. While I agree generally, I have two points in response, one of which is probably irrelevant.

First, to say that Congress intended ICRA to protect individuals from the arbitrary and capricious acts of tribal governments is a half-truth. Sen. Ervin intended ICRA to be a tool of civilizing, or assimilating, or whatever the term is when a more powerful government uses its power in an effort to make a less powerful government in its own image (absent the power, of course). In this regard, it was an almost instantaneous success. As David Getches wrote in the 1978, ICRA westernized ( actually, I prefer Americanized; others say “more Anglo”) tribal courts even where those courts didn’t see ICRA as legitimate law. Now tribal courts, with very few exceptions, are westernized … where they exist. Tribal governments without tribal courts are practically by definition not westernized governments (I don’t know what they are, because many don’t really act like governments at all, while many do). I think ICRA will fade away over time as tribal governments adopt their own version of laws that protect individuals, but it’ll take a while."

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Matthew Fletcher on Monteau on the Indian Civil Rights Act (Turtle Talk 7/10)

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Harold Monteau: Individual Indians not protected by tribal courts (7/2)

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