Indian Courts and Fundamental Fairness: 'Indian Courts and the Future' Revisited

38 Pages Posted: 7 Jun 2012 Last revised: 26 Jan 2016

Matthew L. M. Fletcher

Michigan State University College of Law

Date Written: June 7, 2012

Abstract

This paper comes out of the University of Colorado Law Review's symposium issue honoring the late Dean David H. Getches. It begins with Dean Getches’ framework for analyzing Indian courts. I revisit Indian Courts and the Future, the 1978 report drafted by Dean Getches, and the historic context of the report. I compare the 1978 findings to the current state of Indian courts in America. The paper focuses on the ability of Indian courts to successfully guarantee fundamental fairness in the form of due process and the equal protection of the law for individuals under tribal government authority is uniquely tied to the legal infrastructure available to the courts. Congress tried to provide the basic framework in the Indian Civil Rights Act, and many of the most successful tribal justice systems have borrowed from ICRA or developed their own indigenous structure to guarantee due process and equal protection. I argue that ICRA is declining in importance as Indian tribes domesticate federal constitutional guarantees by adopting their own structures to guarantee fundamental fairness.

Keywords: Indian courts, tribal courts, Indian Civil Rights Act, David Getches, National American Indian Court Judges Association

Suggested Citation

Fletcher, Matthew L. M., Indian Courts and Fundamental Fairness: 'Indian Courts and the Future' Revisited (June 7, 2012). 84 University of Colorado Law Review 59 (2013); MSU Legal Studies Research Paper No. 10-15. Available at SSRN: https://ssrn.com/abstract=2079757

Matthew L. M. Fletcher (Contact Author)

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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