Tribal Incorporation of First Amendment Norms: A Case Study of the Indian Tribes of South Dakota

29 Pages Posted: 16 May 2008  

Patrick M. Garry

University of South Dakota - School of Law

Candice Spurlin

University of South Dakota Law School

Jennifer Keating

affiliation not provided to SSRN

Derek Nelsen

affiliation not provided to SSRN

Abstract

This article analyzes how Indian tribal courts have incorporated First Amendment norms within tribal legal systems. Given the more traditionally communal nature of tribal societies, Indian tribal courts have taken a slightly different approach to the kind of individual rights articulated in the First Amendment. As this article demonstrates, tribal courts have elevated community interest and values when considering individual rights issues. The ways in which those interests and values have been elevated may prove instructive to those who advocate a more balanced approach to First Amendment freedoms within the U.S. judicial system.

The article examines the legal obligation imposed on Indian tribes to protect certain individual rights, and whether the First Amendment applies to Indian tribes, and finally how the Indian Civil Rights Act applies. The article analyzes how federal courts have interpreted the Indian Civil Rights Act and surveys Indian tribal court decisions concerning individual rights issues such as free speech, free press, and free exercise of religion.

The final part of the article analysis turns away from reported tribal court decisions and focuses on tribal political, social, and cultural issues relating to First Amendment-type rights. In this respect, the article focuses exclusively on the nine tribes of South Dakota, exploring how First Amendment-type issues have arisen within those tribes and how they have been resolved outside of the judicial system.

Keywords: First Amendment, Indian Civil Rights Act, ICRA, Individual rights, Freedom of religion, Freedom of press, Freedom of assembly, Freedom of speech, South Dakota tribes, Tribal constitutions, Study

JEL Classification: K1, K10, K19, K30, K39

Suggested Citation

Garry, Patrick M. and Spurlin, Candice and Keating, Jennifer and Nelsen, Derek, Tribal Incorporation of First Amendment Norms: A Case Study of the Indian Tribes of South Dakota. South Dakota Law Review, Vol. 53, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1133998

Patrick M. Garry (Contact Author)

University of South Dakota - School of Law ( email )

414 E. Clark Street
Vermillion, SD 57069
United States

Candice J. Spurlin

University of South Dakota Law School ( email )

414 E. Clark Street
Vermillion, SD 57069
United States

Jennifer Keating

affiliation not provided to SSRN

Derek Nelsen

affiliation not provided to SSRN

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