The guarantee of equal protection of the laws is the most significant legal defense available to American citizens to combat the inequities often imposed by a powerful and impersonal government. Yet, until passage of the Indian Civil Rights Act in 1968, the reservation dweller was afforded equal protection of tribal laws only if the tribe deemed this alien value acceptable and adequately implemented it. In most instances, Indians and other persons residing on the reservation were denied judicial review of alleged violations of their constitutional rights, including the right to equal protection, by their tribal governments. They were also prevented from airing their grievances in the federal courts by the long-standing doctrine of “constitutional immunity,”s which recognized the tribes as unique cultural communities immunized, to a large degree, from the imposition of a complex, foreign body of law. In the 1960’s, however, concern over the precarious status of the reservation dwellers’ constitutional rights vis-a-vis tribal governments led Congress to enact an “Indian Bill of Rights, contained in the Indian Civil Rights Act. Congress modeled this legislation after the federal Bill of Rights.
Section 8 of the Indian Bill of Rights [hereinafter section 1302(8)] requires a tribal government to provide equal protection of its laws for all persons within its jurisdiction. This Note will focus upon the actual and potential effects of section 1302(8) on the vitally important power of the tribes to determine the standards for membership in their ethnic unit. Special consideration will be given to the effect of equal protection on the tribes’ use of racial and other disfavored criteria. The historical development of the constitutional immunity doctrine, the history of the Indian Civil Rights Act, and the Indians’ reaction to their Bill of Rights will be discussed first. The Note will then review judicial attempts to define and delineate the scope of section 1302(8) in the light of evolving equal protection theory. These issues arise in cases in which tribal governments have been accused of unfairly limiting individual involvement in reservation activities or of denying individuals benefits that flow directly from tribal membership. Finally, guidelines will be proposed for distinguishing section 1302(8) from the equal protection clause of the fourteenth amendment and for administering equal protection standards to challenged tribal membership and enrollment ordinances
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