Civil Rights Notes: American Indians and Banishment, Jury Trials, and the Doctrine of Lenity

38 Pages Posted: 27 Apr 2018 Last revised: 20 May 2019

Date Written: April 9, 2018


Indian defendants appearing before tribal courts are not protected by the Bill of Rights. Instead, Congress enacted the Indian Civil Rights Act in 1968 to extend some, but not all, constitutional protections unto Indian reservations. Fifty years later and there continues to be extensive litigation surrounding ICRA.

This paper looks at all of the ICRA cases decided in 2017 to attempt to evaluate the merits of ICRA’s protections of tribal rights. The picture is decidedly mixed. From these cases the paper calls for three changes that directly respond to trends in civil rights litigation. 1) The paper suggests that courts expand the understanding of habeas jurisdiction to extend when an individual has been banished. It argues that banishment is a form of confinement and a restriction of liberty – albeit one where the jail cell is large, essentially the world minus the reservation. 2) Tribes must adopt codes that provide for a trial by jury and rules for determining who constitutes the jury and how it may be empaneled. While ICRA provides for a trial by jury, tribal courts have an affirmative duty to inform defendants of their right to request a jury trial. It is a violation of ICRA if the tribe does not make provisions for a jury when requested. 3) Finally tribal court judgments, when used in other forums, may be ambiguous because tribal law and tribal procedures are distinct from those followed by states or the federal system. Accordingly, any ambiguity that arises in response to a tribal court judgment should be resolved with a reference to the doctrine of lenity.

Keywords: ICRA, Indian, Civil Rights, Native American, Tribal Court, Jury Trial, Jury, Banishment, Lenity, Bryant, United States v. Bryant, Indian Civil Rights Act, Habeas, Habeas Corpus, Right to Counsel, Lawyer, Counsel

Suggested Citation

Christensen, Grant, Civil Rights Notes: American Indians and Banishment, Jury Trials, and the Doctrine of Lenity (April 9, 2018). William & Mary Bill of Rights, Vol. 27, 2018, Available at SSRN:

Grant Christensen (Contact Author)

The University of North Dakota ( email )

215 Centennial Dr.
P.O. Box 9003
Grand Forks, ND 58202
United States

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