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Harvard Civil Rights - Civil Liberties Law Review


This article explores the question of how tribal constitutional law is interpreted and controlled by traditional tribal law principles in the context of tribal customary rights. Specifically, this article addresses the notion of whether an action, by the tribal government or a citizen, can infringe on the fundamental rights of citizens or whether the infringing action is limited by the customary obligation of responsible governance. This article addresses these competing views and argues that tribal courts can restore harmony—the goal of tribal law—by ensuring responsible governance through the appropriate balancing of tribal customary rights with the need for tribal government and citizen action. In doing so, Part II details the principle of responsible governance. Part III details which rights are fundamental pursuant to tribal customary law. Specifically, this Part will address the question of, what are the fundamental rights that go to the core of Indianness, or tribal identity. Part IV provides recommendations for tribal courts in their ongoing review of tribal customary rights. Part V concludes by emphasizing the principle that tribal courts can advance tribal sovereignty and governance through a focus on the utilization of tribal customary law principles.