Civil Liberties Guarantees When Indian Tribes Act as Majority Societies: The Case of the Winnebago Retrocession
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Wilkinson, Charles F.
INTRODUCTION|When Indian law intersects the larger body of jurisprudence, it usually angles in from an off direction. One result is that legal rules at play in Indian country typically vary from American law as it operates generally. Thus, special principles apply within Indian reservations in many fields of law, including criminal and civil jurisdiction, tort and contract law, and even constitutional law.|The distinctive qualities of Indian issues are also at work with regard to civil liberties. The field of civil rights law is comprised of the rules that an enlightened majority has adopted, usually at a moment of intensified scrutiny, such as a national social crisis or during the drafting of a constitution, to restrain future majorities from discriminating against dispossessed people. Although white males have invoked the civil rights statutes under very limited circumstances, the heartbeat of civil rights law has been to protect minorities - the races, religions, splinter political groups, aliens, gays, the handicapped, and women, who are numerically a majority but who bear the legal and political characteristics of a minority. In this sense, Indians, who as a people are profoundly dispossessed, plainly constitute a classic group entitled to shelter under the civil rights laws when the majority acts upon a minority...
21 Creighton L. Rev. 773 (1987-1988)
Creighton University School of Law