436 U.S. 49 (1978), argued 29 Nov. 1977, decided 15 May 1978 by vote of 7 to 1; Marshall for the Court, White in dissent, Blackmun not participating. The 1968 Indian Civil Rights Act applied most of the guarantees of the federal Bill of Rights to Native American tribal governments. It initially provided only a habeas corpus remedy in criminal cases. But lower federal courts developed a series of “implied” civil remedies—actions for declaratory or injunctive relief or mandamus—so that federal courts came to review matters central to tribal self-government, including election procedures, reapportionment cases, the right to vote and hold public office, and proper qualifications for tribal membership.
Martinez was a membership case, filed under the Indian Civil Rights Act on a gender discrimination charge. The case claimed that a tribal rule allowing tribal membership to children of male members who married outside the tribe but not to women who did the same violated the equal protection clause of the act. Justice Thurgood Marshall, writing for the Court, denied the claim and eviscerated the law. Contending that a federal cause of action was not required to extend constitutional norms to tribal governments, he urged that grieving Indians sue in their tribal courts so as to preserve tribal self-determination. Justice Byron White, in his dissent, wrote, “I cannot believe that Congress desired the enforcement of these acts to be left up to the very tribal authorities alleged to have violated them. Extension of constitutional rights to individual citizens is intended to intrude upon the authority of government” (p. 69).
The outcome was that the decision strengthened tribal self-determination, but an Indian with a complaint against a tribal government had little opportunity for relief. Few tribal court decisions were subsequently appealed.
Paul L. Murphy