Opinion by Gregory Ablavsky and Elizabeth Hidalgo Reese: The Supreme Court strikes again — this time at tribal sovereignty
-era understanding of Indian country as separate from the State was abandoned” later in the 1800s.
As scholars who have dedicated our lives to studying this area of law, we are baffled. When and how did this supposed abandonment happen? The majority relies not on Founding-era understandings or canonical federal Indian law cases, but on cherry-picked ancillary cases and late-19th-century arguments with subsequently overruled foundations.This is not how originalism is supposed to work.
Now, as in the 1830s, jurisdiction is about power. Then, states sought to control Indian country not to protect Native people but to erode tribal sovereignty. Perhaps today, states will choose not to use their newly conferred power to usurp tribal authority over their lands. But there is good reason to doubt this.
For example, last week there were scenarios in which tribes or the federal government could protect access to reproductive care on tribal lands. Now, following the Supreme Court’s overturning of, there is nothing to stop a surrounding state from entering tribal lands and prosecuting non-Indian doctors or women — no matter what the tribe has to say about it.
We hope that much of this unnecessarily broad opinion will be interpreted narrowly and carefully by future courts. Butis more than a jurisdictional dispute. It is, like the other cases decided in the final week of the court’s term, a radical remaking of current law that casts aside foundational precedent — and could have profound consequences for Native nations and their authority.
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