INDIANS - CRIMINAL PROCEDURE - HABEAS CORPUS AS AN ENFORCEMENT PROCEDURE UNDER THE INDIAN CIVIL RIGHTS ACT OF 1968, 25 U.S.C. 1302-1303

• NCJ Number: 64172
• Journal: Washington Law Review Volume: 46 Dated: (MAY 1971) Pages: 501-554
• Author(s): ANON
• Date Published: 1971
• Length: 14 pages
• Corporate Author: University of Washington
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE EXTENSION BY THE 1968 INDIAN CIVIL RIGHTS LAW OF FEDERAL HABEAS CORPUS REVIEW TO INDIVIDUAL INDIANS IS INAPPROPRIATE FOR THE INDIAN JUSTICE SYSTEM AND AN INADEQUATE TOOL FOR ENFORCING CIVIL RIGHTS LEGISLATION.

Abstract

UNTIL 1965 FEDERAL COURTS RECOGNIZED INDIAN TRIBES AS QUASI-SOVEREIGN ENTITIES AND GUARANTEED THE CONSTITUTIONAL RIGHTS OF INDIVIDUAL INDIANS ONLY IN RELATIONS WITH FEDERAL AND STATE GOVERNMENTS. THE INDIAN BILL OF RIGHTS WAS ENACTED TO GUARANTEE INDIVIDUAL INDIANS THE RIGHTS ENJOYED BY ALL AMERICANS, AND ALTHOUGH THE LEGISLATION REFLECTED A CONCERN FOR INDIAN LIFE AND CUSTOM, THE ENFORCEMENT PROVISION PROVIDING HABEAS CORPUS IS INCONSISTENT WITH FEDERAL RESPONSIBILITY TO REFRAIN FROM INTERFERING WITH INDIAN CULTURE. THE INDIAN JUSTICE SYSTEM IS DIVIDED INTO TRADITIONAL COURTS, TRIBAL COURTS, AND COURTS OF INDIAN OFFENSES. THE COURT OF INDIAN OFFENSES WAS CREATED BY THE FEDERAL GOVERNMENT TO REPLACE FAILING TRIBAL SYSTEMS AND IS ADMINISTERED BY THE GOVERNMENT. ADEQUATE APPEAL PROCEDURES ARE LACKING; HOWEVER, THE INDIAN SYSTEM EMPHASIZES RESTITUTION AND REHABILITATION RATHER THAN RETRIBUTION AND INCARCERATION AND HAS INFORMAL CONSTITUTIONAL GUARANTEES. IT IS GREATLY RESPECTED BY THE INDIANS. HABEAS CORPUS REVIEW COULD REMOVE EFFECTIVE ADJUDICATION FROM THE TRIBAL COURTS AND, BECAUSE OF THE LACK OF INDIAN RECORDKEEPING, WOULD PROBABLY RESULT IN DUPLICATE LITIGATION OF MOST PROCEEDINGS. FURTHERMORE, FEDERAL JUDGES WOULD NOT BE FAMILIAR WITH THE TRADITIONS AND CUSTOMS THAT HAVE INFLUENCED A TRIBAL COURT DECISION, AND HABEAS CORPUS REVIEW COULD IMPOSE UNNECESSARY COSTS AND INCONVENIENCES ON INDIAN TRIBES. THE INDIAN BILL OF RIGHTS COULD BE ENFORCED USING ALTERNATIVE METHODS: (1) REVIEW BY MEANS OF APPEAL TO FEDERAL COURTS BASED ON MODIFIED VERSIONS OF TRIBAL PROCEDURES AND FEDERAL LAW AND (2) ESTABLISHMENT OF AN INDIAN COURT OF APPEALS WHICH WOULD CONFIRM INDIAN CONTROL OVER THEIR JUDICIAL SYSTEM. THE TEXT OF THE INDIAN BILL OF RIGHTS AND FOOTNOTES ARE PROVIDED. (MJM)