Indian Civil Rights Act of 1968

The Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C.§§ 1301-1304 (ICRA), provides as

follows:

§ 1301. Definitions: For purposes of this subchapter, the term

1. "Indian tribe" means any tribe, band, or other group of Indians subject to the jurisdiction

of the United States and recognized as possessing powers of self-government.

2. "powers of self-government" means and includes all governmental powers possessed by

an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals

by and through which they are executed, including courts of Indian offenses; and means

the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal

jurisdiction over all Indians;

3. "Indian court" means any Indian tribal court or court of Indian offense, and.

4. "Indian" means any person who would be subject to the jurisdiction of the United States

as an Indian under section 1153, title 19, United States Code, if that person were to

commit an offense listed in that section in Indian country to which that section applies.

§ 1302. Constitutional Rights: No Indian tribe in exercising powers of self-government shall:

(a) In general

No Indian tribe in exercising powers of self-government shall—

1. make or enforce any law prohibiting the free exercise of religion, or abridging the

freedom of speech, or of the press, or the right of the people peaceably to assemble and to

petition for a redress of grievances;

2. violate the right of the people to be secure in their persons, houses, papers, and effects

against unreasonable search and seizures, nor issue warrants, but upon probable cause,

supported by oath or affirmation, and particularly describing the place to be searched and

the person or thing to be seized;

3. subject any person for the same offense to be twice put in jeopardy;

4. compel any person in any criminal case to be a witness against himself;

5. take any property for a public use without just compensation;

6. deny to any person in a criminal proceeding the right to a speedy and public trial, to be

informed of the nature and cause of the accusation, to be confronted with the witnesses

against him, to have compulsory process for obtaining witnesses in his favor, and at his

own expense to have the assistance of counsel for his defense;

(A) require excessive bail, impose excessive fines, or inflict cruel and unusual punishments;

(B) except as provided in subparagraph (C), impose for conviction of any 1 offense any penalty

or punishment greater than imprisonment for a term of 1 year or a fine of $5,000, or both;

greater than imprisonment for a term of 3 years or a fine of $15,000, or both; or

(D) impose on a person in a criminal proceeding a total penalty or punishment greater than

imprisonment for a term of 9 years;

8. deny to any person within its jurisdiction the equal protection of its laws or deprive any

person of liberty or property without due process of law;

9. pass any bill of attainder or ex post facto law; or

10. deny to any person accused of an offense punishable by imprisonment the right, upon

request, to a trial by jury of not less than six persons.

(b) Offenses subject to greater than 1-year imprisonment or a fine greater than $5,000

A tribal court may subject a defendant to a term of imprisonment greater than 1 year but not to

exceed 3 years for any 1 offense, or a fine greater than $5,000 but not to exceed $15,000, or both,

if the defendant is a person accused of a criminal offense who—

1. Has been previously convicted of the same or a comparable offense by any jurisdiction in

the United States; or

2. Is being prosecuted for any offense comparable to an offense that would be punishable by

more than 1 year of imprisonment if prosecuted by the United States or any of the States.

In a criminal proceeding in which an Indian tribe, in exercising powers of self-government,

imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall—

1. provide to the defendant the right to effective assistance of counsel at least equal to that

guaranteed by the United States Constitution; and

2. at the expense of the tribal government, provide an indigent defendant the assistance of a

defense attorney licensed to practice law by any jurisdiction in the United States that

applies appropriate professional licensing standards and effectively ensures the

competence and professional responsibility of its licensed attorneys;

3. require that the judge presiding over the criminal proceeding—

(A) has sufficient legal training to preside over criminal proceedings; and

(B) is licensed to practice law by any jurisdiction in the United States;

4. prior to charging the defendant, make publicly available the criminal laws (including

regulations and interpretative documents), rules of evidence, and rules of criminal

procedure (including rules governing the recusal of judges in appropriate circumstances)

of the tribal government; and

5. maintain a record of the criminal proceeding, including an audio or other recording of the

trial proceeding.

(d) Sentences

In the case of a defendant sentenced in accordance with subsections (b) and (c), a tribal court

may require the defendant—

1. to serve the sentence—

(A) in a tribal correctional center that has been approved by the Bureau of Indian Affairs for

long-term incarceration, in accordance with guidelines to be developed by the Bureau of Indian

Affairs (in consultation with Indian tribes) not later than 180 days after July 29, 2010;

(B) in the nearest appropriate Federal facility, at the expense of the United States pursuant to the

Bureau of Prisons tribal prisoner pilot program described in section 304(c)[1] of the Tribal Law

and Order Act of 2010;

agreement between the Indian tribe and the State or local government; or

(D) in an alternative rehabilitation center of an Indian tribe; or

2. to serve another alternative form of punishment, as determined by the tribal court judge

pursuant to tribal law.

(e) Definition of offense

In this section, the term "offense" means a violation of a criminal law.

(f) Effect of section

Nothing in this section affects the obligation of the United States, or any State government that

has been delegated authority by the United States, to investigate and prosecute any criminal

violation in Indian country.

§ 1303. Habeas corpus

The privilege of the writ of habeas corpus shall be available to any person, in a court of the

United States, to test the legality of his detention by order of an Indian tribe.

§ 1304. Tribal Jurisdiction over Crimes of Domestic Violence

(a) Definitions.—In this section:

1. Dating Violence.—The term ‘dating violence’ means violence committed by a person

who is or has been in a social relationship of a romantic or intimate nature with the

victim, as determined by the length of the relationship, the type of relationship, and the

frequency of interaction between the persons involved in the relationship.

2. Domestic Violence.—The term ‘domestic violence’ means violence committed by a

current or former spouse or intimate partner of the victim, by a person with whom the

victim shares a child in common, by a person who is cohabitating with or has cohabitated

with the victim as a spouse or intimate partner, or by a person similarly situated to a

spouse of the victim under the domestic- or family-violence laws of an Indian tribe that

has jurisdiction over the Indian country where the violence occurs.

3. Indian country.—The term ‘Indian country’ has the meaning given the term in section

1151 of title 18, United States Code.

4. Participating tribe.—The term "participating tribe’ means an Indian tribe that elects to

exercise special domestic violence criminal jurisdiction over the Indian country of that

Indian tribe.

5. Protection order.—The term ‘protection order’—

(A) means any injunction, restraining order, or other order issued by a civil or criminal court for

the purpose of preventing violent or threatening acts or harassment against, sexual violence

against, contact or communication with, or physical proximity to, another person; and

(B) includes any temporary or final order issued by a civil or criminal court, whether obtained by

filing an independent action or as a Pendente lite order in another proceeding, if the civil or

criminal order was issued in response to a complaint, petition, or motion filed by or on behalf of

the person seeking protection.

6. Special domestic violence criminal jurisdiction.—The term ‘special domestic violence

criminal jurisdiction’ means the criminal jurisdiction that a participating tribe may

exercise under this section but could not otherwise exercise.

7. Spouse or intimate partner.—The term ‘spouse or intimate partner’ has the meaning

given the term in section 2266 of title 18, United States Code.

(b) Nature of Criminal Jurisdiction.—

1. In general.—Notwithstanding any other provision of law, in addition to all powers of

self-government recognized and affirmed by sections 201 and 203 [25 USC § 1301 and

1303, respectively], the powers of self-government of a participating tribe include the

inherent power of that tribe, which is hereby recognized and affirmed, to exercise special

domestic violence criminal jurisdiction over all persons.

2. Concurrent jurisdiction.—The exercise of special domestic violence criminal jurisdiction

by a participating tribe shall be concurrent with the jurisdiction of the United States, of a

State, or of both.

3. Applicability.—Nothing in this section—

(A) creates or eliminates any Federal or State criminal jurisdiction over Indian country; or

(B) affects the authority of the United States or any State government that has been delegated

authority by the United States to investigate and prosecute a criminal violation in Indian country.

4. Exceptions.—

(A) Victim and defendant are both non-Indians.—

(i) In general.—A participating tribe may not exercise special domestic violence criminal

jurisdiction over an alleged offense if neither the defendant nor the alleged victim is an Indian.

(ii) Definition of victim.—In this subparagraph and with respect to a criminal proceeding in

which a participating tribe exercises special domestic violence criminal jurisdiction based on a

violation of a protection order, the term ‘victim’ means a person specifically protected by a

protection order that the defendant allegedly violated.

(B) Defendant lacks ties to the Indian tribe.—A participating tribe may exercise special domestic

violence criminal jurisdiction over a defendant only if the defendant—

(i) resides in the Indian country of the participating tribe;

(ii) is employed in the Indian country of the participating tribe; or

(iii) is a spouse, intimate partner, or dating partner of—

(I) a member of the participating tribe; or

(II) an Indian who resides in the Indian country of the participating tribe.

jurisdiction over a defendant for criminal conduct that falls into one or more of the following

categories:

1. Domestic violence and dating violence.—An act of domestic violence or dating violence

that occurs in the Indian country of the participating tribe.

2. Violations of protection orders.—An act that—

(A) occurs in the Indian country of the participating tribe; and

(B) violates the portion of a protection order that—

(i) prohibits or provides protection against violent or threatening acts or harassment against,

sexual violence against, contact or communication with, or physical proximity to, another

person;

(ii) was issued against the defendant;

(iii) is enforceable by the participating tribe; and

(iv) is consistent with section 2265(b) of title 18, United States Code.

(d) Rights of Defendants.—In a criminal proceeding in which a participating tribe exercises

special domestic violence criminal jurisdiction, the participating tribe shall provide to the

defendant—

1. all applicable rights under this Act;

2. if a term of imprisonment of any length may be imposed, all rights described in section

202(c) [25 USC 1302(c)];

3. the right to a trial by an impartial jury that is drawn from sources that—

(A) reflect a fair cross section of the community; and

(B) do not systematically exclude any distinctive group in the community, including non-

Indians; and

4. all other rights whose protection is necessary under the Constitution of the United States

in order for Congress to recognize and affirm the inherent power of the participating tribe

to exercise special domestic violence criminal jurisdiction over the defendant.

(e) Petitions to Stay Detention.—

1. In general.—A person who has filed a petition for a writ of habeas corpus in a court of

the United States under section 203 [25 USC § 1303] may petition that court to stay

further detention of that person by the participating tribe.

2. Grant of stay.—A court shall grant a stay described in paragraph (1) if the court—

(A) finds that there is a substantial likelihood that the habeas corpus petition will be granted; and

(B) after giving each alleged victim in the matter an opportunity to be heard, finds by clear and

convincing evidence that under conditions imposed by the court, the petitioner is not likely to

flee or pose a danger to any person or the community if released.

3. Notice.—An Indian tribe that has ordered the detention of any person has a duty to timely

notify such person of his rights and privileges under this subsection and under section

203 [25 USC § 1303].