Sex Discrimination Under Tribal Law

Abstract:     
This article undertakes a broad-based survey of tribal laws that pertain to sex-based classifications, focusing primarily on laws that prohibit sex discrimination. The sources relied on include the tribal codes, constitutions, and cases available online from the National Tribal Justice Resource Center; cases included in the Indian Law Reporter; the University of Washington's 1988 microfiche compilation of tribal codes and constitutions; the decisions of the Northwest Intertribal Courts; the limited tribal law resources available on Westlaw; and occasionally legal resources downloaded from the websites of individual tribes and from other miscellaneous websites.

The article first examines tribal court caselaw on equal protection in the sex discrimination context and then turns to explicit tribal code and constitutional provisions protecting against sex discrimination and the caselaw interpreting such provisions. While tribal laws are not widely accessible, my research identified twenty-six tribes that had in place at least one law prohibiting sex discrimination. In terms of the tribal codes available on the National Tribal Justice Resource Center's website, twenty-two percent of such tribes had an explicit prohibition on sex discrimination in place. The content of these laws is discussed and comparisons are drawn to state and federal laws where applicable. This section demonstrates the wide variety of tribal sex discrimination laws that are currently in place.

The article next turns to tribal laws making sex-based distinctions, followed by a brief discussion of tribal sovereign immunity and concluding with a discussion of the possibility that potential sex discrimination claimants may be focusing on other types of claims, given the relatively few cases addressing sex discrimination compared to the number of laws providing protection.

Number of Pages in PDF File: 55

Keywords: sex discrimination law, tribal law, comparative law, Indian Civil Rights Act, employment discrimination, civil rights, equal protection, sexual harassment

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