(Editor’s note: News releases are published unedited, unless they contain factual errors.)
Phoenix—The Goldwater Institute today asked the High Court to overrule its 1978 decision that severely limited tribal court litigants from obtaining federal court review of civil rights issues that are litigated in tribal court.
The case involves an ex-tribal council member, Jessica Tavares, who was banished from her tribe for exercising her right to speak freely against alleged fraud and mismanagement in tribal government. This case would have been easy if, say, Tavares was banished from the premises of a state capitol in retaliation for holding a lawful, peaceful protest against a state government. She would have had a clear opportunity to go to federal court for redress of grievances.
But the federal court in Tavares’s case refused to hear the case because the case arose from tribal proceedings. In 1978, the U.S. Supreme Court ruled in a case called Santa Clara Pueblo v. Martinez that for Indian civil rights violations, only criminal cases can be heard in federal court. But the vast majority of civil-rights abuses
are civil cases—like Jessica Tavares’s case—and the Court’s reasoning has been thoroughly undermined by subsequent cases decided by the Supreme Court. Because of the 1978 decision, Tavares is deprived of any legal protection for the fundamental right of protesting what she believes to be the wrongful act of an American government.
“Whatever the historical reasons for the second-class treatment of Indians and tribal court litigants, “none of the rationales for it are justified by current needs,” said Timothy Sandefur, Goldwater Institute vice president for litigation. “The Supreme Court should take the case to guarantee Native American citizens the protection for fundamental human rights promised them.”
In the coming weeks, we will find out if the Court decided to take the case. Goldwater’s brief is available here.