August 1, 2020
Native Americans and the Law
A statue of a Native American woman by a Chiricahua sculptor, Allan Houser, stands outside the Oklahoma State Capitol; another bronze statue of an Indian warrior is on the dome. No doubt they were inwardly smiling with the announcement on July 9, 2020 of the decision of the U.S. Supreme Court in the case of McGirt v. Oklahoma. The inherent argument is over the nature of the power possessed by Native Americans in their reservations and whether that power can be considered "sovereign" even if it does not approximate the definition by Thomas Hobbes of complete monopoly of power in a particular geographical area.
The case is fascinating, combining historical, legal, and political factors, questions of jurisdictional powers, and differences over interpretation of U.S. law, whether from an originalist and textualist or intentionalist and living constitutionalist point of view. The U.S. Constitution, Article 1, Section 8 grants Congress the power...(Read Full Article)