Supreme Court reversed almost 200 years of US law and tradition upholding tribal sovereignty in its latest term

Over the past 50 years, Congress and the U.S. Supreme Court have increasingly diverged in how they view the laws that relate to Indian tribes. Congress has passed significant legislation that expands tribal governments’ sovereignty and control over their land, while the Supreme Court has ignored and reversed long-standing principles of federal Indian law that protected tribal sovereignty and prevented the states from exercising authority in Indian country.

This trend at the court was seen most recently in a ruling from late June, which, as one longtime court observer put it, wiped away “centuries of tradition and practice.” Justice Neil Gorsuch scorned the ruling in his dissent: “Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.”

From my perspective as an expert in federal Indian law, the most recent case is noteworthy because it says that states may exercise authority in Indian Country even without express congressional authorization. For centuries, that was not the case.

Here’s the background:

The U.S. Constitution gives Congress authority over Indian affairs, including the power to diminish and restore tribal powers. Since 1885, Congress has granted authority to federal prosecutors to try major crimes committed in Indian Country, such as murder and rape, in federal courts. Tribal governments can probably try these crimes, but Congress has limited the sentences tribal courts can impose on convicted offenders. As a result, the federal government has been the primary enforcer of criminal law in Indian Country for a long time.

With limited exceptions, the Supreme Court has interpreted the Constitution to say that the states do not have authority in Indian Country unless Congress expressly grants such authority. Congress has rarely authorized states to exercise authority in Indian Country, and it has required tribal consent before granting any such authority to a state since 1968.

The background to this allocation of authority is a long history of states’ trying to usurp tribal sovereignty by asserting jurisdiction over Indians in Indian Country. States’ early attempts to govern Indians led to violence and encouraged the Founding Fathers to grant all powers over Indian affairs to the federal government in the Constitution.

Tujuan kami adalah menciptakan tempat yang aman dan menarik bagi pengguna untuk terhubung melalui minat dan kegemaran. Untuk meningkatkan pengalaman komunitas, kami menangguhkan sementara fitur komentar artikel