native american citizenship

[judith-royster at UTULSA.EDU]

  I certainly agree with Prof Levinson that conlaw has
too oftne ignored issues of Indian law.  But tribal
courts are not "courts of last resort with regard to
interpreting the Fourteenth Amendment."
   Indian tribes acting as governments are not subject
to the 14th amendment or any other part of the US
Constitution.  Any 14th amendment case brought in tribal
court, therefore, would not be against a tribal
governmental actor, but against a state actor.  And as a
general proposition, any lawsuit decided in tribal court
that involves at least one non-Indian party and a
federal question, is subject to post-exhaustion (of
tribal remedies) review in federal court, with all the
usual appeals up to and including the Supremes.
   What Indian tribes acting as governments *are*
subject to is the Indian Civil Rights Act of 1968.  It's
a common misperception that ICRA extended the Bill of
Rights and/or the 14th amendment to tribes, but Congress
has no authority to unilaterally bring the tribes in as
"parties" to the Constitution.  Instead, ICRA created a
series of federal statutory rights against tribal
governments, which mirror most (but not all) of those
found in the Constitution (due process, equal
protection, free speech, etc.)
   If a person (Indian or non-indian) alleges in a
lawsuit that an Indian tribal actor is depriving that
person of due process, for example, that's an action
under ICRA, not the 14th amendment.  As as to ICRA
cases, tribal court jurisdiction *is* exclusive of both
state and federal coruts (subject only to federal
habeas).  Moreover, in their decisions on due process
(etc), tribal courts are not bound by US constitutional
ideas of what due process is, but are free to decide
cases in accordance with tribal principles of due
process (which may well be different).