Are Indian tribal governments subject to the Bill of Rights?

Question

In the US, Indian tribes with official recognition from the federal government are given sovereignty and the right to self-governance. They are not subject to state laws in the state their reservation is in.

Are these Indian tribal governments subject to the Bill of Rights of the Constitution? Can an Indian tribe deny the right to bear arms, the right to a trial, the right against search and seizure, the right to due process, etc?

Also, are other Constitutional amendments applicable to the tribes? For example the 19th amendment giving women the right to vote, or the 26th amendment giving 18-year-olds the right to vote.

Answer 1

Possibly...

The case of "Native American Church v. Navajo Tribal Council" looked at whether the duties of the First Amendment on the government applied to Tribal Government. The conclusion was that the Tribal Governments are not part of the US, but subject to it. So the Constitution of the US does not apply to the US tribal regions, or to those under their jurisdiction, but Congress can pass bills that apply parts of the Constitution to the Tribal Governments. The first amendment does not apply to the Navajo Tribal Council, because Congress has not passed a bill that applies it.

The position of Native American tribes in the US constitution is hazy at best. There is the mention of "Indians not taxed" for the purposes of apportion, and the power of Congress to:

regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Case law has generally taken the view that the Indian Nations are free to self-regulate; that they cannot form treaties with the individual States, nor with foreign nations, only with the Federal Government; that they have limited jurisdiction of non-Native-Americans even within their borders; and that Congress does have ultimate authority over the Tribal Governments.

So the second amendment would not apply, unless Congress says it does.

Answer 2

Short answer: they are subject to some of the provisions in the Bill of Rights, but not all of them.

As part of the Civil Rights Act of 1968, Congress passed legislation called the "Indian Civil Rights Act" which clearly stated which rights persons living in and subject to Indian tribes were entitled to.

These rights included:

• 1st, 4th, 5th, and 6th Amendment protections

• 14th amendment and equal protection rights

• freedom from ex-post facto and bill of attainder laws

These new protections did not include second amendment protections, so supposedly tribal governments could deny the right to bear arms on a reservation. The 19th amendment female suffrage is implicitly defended through the "equal protection under the law" right, but 18-year-olds do not necessarily have suffrage.

However, as a previous answer pointed out, new laws by Congress could be passed to give Indian tribe members more (or less) rights, even to the point of adding rights that no other group may have.