Sen. Orrin Hatch, R-Utah, has introduced legislation to amend the Indian Civil Rights Act, a document serving Indians much like the Bill of Rights serves U.S. citizens. Hatch says Indian tribes have abused the document.
The amendment is designed to ensure that tribes respect separation of powers between tribal legislative bodies and tribal judicial branches, Hatch said in remarks made before the Senate upon the bill's introduction."Separation of powers into co-equal branches of government in order that one may check the potential abuse of another is not a concept well established in tribal governments,' Hatch said.
Hatch pointed to several examples of alleged civil rights abuse, including an instance in 1979 when an Indian was arrested, held without bail for five days and flogged with a rawhide whip before several tribal officials.
In other instances not included in Hatch's remarks, the U.S. Commission on Civil Rights in 1987 investigated alleged civil rights violations on the Navajo Indian Reservation, which extends into southern Utah.
The commission focused its attention on the 1978 formation of the Supreme Judicial Council, a legislative body the tribe created to review decisions made by the judicial branch. The relationship is tantamount to the U.S. Congress meddling in the affairs of the U.S. Supreme Court.
The council was scuttled by the tribe, and Navajo judicial officials say although its existence made them uncomfortable, its disbandment vindicates the tribe of any civil rights abuses.
Additionally, the commission investigated two judges who, after rendering apparently unpopular decisions, were removed from the bench by the tribal council in an incident referred to as the "midnight massacre." Hatch's bill would reinstate federal court authority over affairs that now are solely within the jurisdiction of tribal courts, as provided for under a U.S. Supreme Court decision in Santa Clara Pueblo vs. Martinez.
Under Hatch's amendment, if court action was exhausted within a tribal judicial system - on the Navajo Reservation, nearly identical to the U.S. court system - then further appeals could be sought in a U.S. District Court.
Santa Clara says U.S. Courts can only review whether tribal courts have jurisdiction over certain adjudication. Tribal courts can hear most civil actions but severe criminal acts, such as murder, fall under federal court jurisdiction.
The Supreme Court ruled in Santa Clara that if tribes were deficient in protecting civil rights, Congress could change the law to provide for federal intervention, Hatch said.
"Because of the enforcement problems that have occurred since the (Santa Clara) case, time has now come to follow the Supreme Court's dictum and legislate a federal court remedy,' he said.
The bill was referred to the Senate Judiciary Committee but was not acted on during this session. It will be reintroduced next year, a committee staffer said.