n 1968, the United States Congress passed the Indian Civil Rights Act, 82 Stat. 77, 25     
U.S.C.A. § 1301 et seq. (“ICRA”), which imposes upon the Indian tribes within U.S.
borders most of the requirements of the Bill of Rights (the first ten amendments to the U.S.
Constitution).

ICRA also amended Public Law 280 to provide that states could not establish jurisdiction
over Indian country unless the affected tribes elected to permit them to do so.  25 U.S.C.A.
§§ 1321-22, 1326.

There is tension in U.S. federal law between the desire to limit federal interference in
tribes' internal matters, and the desire to provide federal remedies for potential violations
of federal law. In the case of Santa Clara Pueblo v. Martinez, for example, 436 U.S. 49
(1978), the U.S. Supreme Court resolved this tension in favor of avoiding federal
interference. In that case, the children of men who married non-tribal members were
made members of the tribe, but the children of women who married outside the tribe were
excluded.  A woman whose children were prevented from tribal membership sued for this
gender discrimination under the ICRA. The Supreme Court dismissed the case upon the
grounds that the tribe was a sovereign and immune from suit, and based upon its
interpretation that under ICRA the only federal remedy available is the writ of habeas
corpus (a court order directing law enforcement to appear in court to assist a judge to
determine whether a prisoner is lawfully in prison). Not only could the woman not recover
from the tribe because of its sovereign immunity, then, but she could not recover from the
tribe’s Governor either because there was no federal remedy available under ICRA for
her to do so.