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In 1968, largely because the United States Constitution does not apply to tribal government activity, Congress enacted the Indian Civil Rights Act–a federal law that requires tribal governments to guarantee due process and equal protection to persons under tribal jurisdiction. In 1978, the Supreme Court held that persons seeking to enforce those federal rights may do so in tribal forums only; federal and state courts are unavailable. Moreover, the Court held that tribes may choose to interpret the meanings of “due process” and “equal protection” in line with tribal laws, including customary laws. Since the advent of the self-determination era of federal Indian law in the 1970s, Michigan Anishinaabe tribal governments have adopted constitutions that also guarantee individual rights, usually using the same or substantively similar language as federal law does. Despite the opportunity to interpret the Due Process and Equal Protection Clauses in accordance with tribal customs, tribal courts have usually applied (or modified) federal precedents to such claims. Given the practical nonexistence of court precedents and legal scholarship on Anishinaabe legal customs and traditions until recently, the reliance on the precedents of the colonizers was inevitable.


Originally published as Fletcher, Matthew. "Due Process and Equal Protection in Michigan Anishinaabe Courts." Michigan State Law Review 2022-2023 (2023).