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Abstract

It is generally understood as a matter of federal Indian law that determinations of tribal law should properly be interpreted by tribal courts. This is because tribal courts do not always adhere to the same legal philosophy as their settler colonial counterparts. Many tribal courts subscribe to traditional law, which is an “essential source” of tribal jurisprudence. Anishinaabe communities have maintained a rich body of traditional tribal law since time immemorial. However, these customary law principles are only recently being included in modern-day Anishinaabe tribal court determinations. This Article builds upon the Anishinaabe law principles articulated in recent opinions and provides an overview of Anishinaabe tribal court jurisdictional cases in analyzing the efficacy of Anishinaabe customary law. Part I provides a brief introduction. Part II provides an overview of traditional Anishinaabe governance. Part III provides an overview of federal law that has been forced upon Anishinaabe communities in an attempt to further the colonizing project of assimilation. Part IV examines the principles of Anishinaabe jurisdiction. In doing so, this Article sets out traditional Anishinaabe law principles of jurisdiction as an example of how Anishinaabe Tribal Nations can define their own interpretations of law and jurisdiction. Part V analyzes how the principles of traditional Anishinaabe law are being balanced with the principles of federal Indian law under Montana and its progeny in Anishinaabe jurisdictional cases. The final Part shows that Anishinaabe tribal courts should be proactive and utilize Anishinaabe customary law in the recognition of their sovereignty apart from the federal courts’ articulations of tribal court jurisdiction. As provided in this Article, Anishinaabe tribal courts have the opportunity to define tribal jurisdiction from a tribal perspective in their tribal court opinions. For a tribal court to properly maintain its tribal character while adapting to the Anglo system of jurisprudence, it must build the system upon tribal concepts. In doing so, Anishinaabe tribal courts can ensure that their analysis remains Anishinaabe in character furthering tribal self-government and self-determination, and that its opinions are not being colonized by federal court determinations of tribal customary principles. In this way, Anishinaabe tribal courts will be able to fully implement the principles embedded in gwayak ateg onaakonigewi dibenjigewin.

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