Document Type

Article

Publication Date

2023

Journal

Oregon Law Review

Volume

101

First Page

307

Last Page

358

Abstract

The Supreme Court’s recent holding in Oklahoma v. Castro-Huerta that “Indian country is part of the State, not separate from the State” is a reminder of tribal sovereignty’s precarious foundation under U.S. law. The Court’s holding not only broke with longstanding precedent regarding the relationship between tribes and states, but it is also incompatible with the lived experience of those living in the Navajo Nation. The Navajo Nation, not the states and not the federal government, has primary responsibility for governing an area roughly the size of West Virginia. Yet most maps of the United States demarcate only state boundaries, obscuring the existence of Indian nations as the third type of sovereign operating within the borders of the United States.

The inability or unwillingness of the U.S. Supreme Court, and to some extent all other non-Indian governance institutions at the state and federal level, to take tribal sovereignty seriously forces a question: Should the Navajo Nation pursue statehood? Such a question may seem far-fetched or merely an academic thought experiment, but there is historical precedent for contemplating the idea that an Indian nation might form a state. Moreover, journalists, academics, and politicians have floated the possibility that the Navajo Nation already meets many of the attributes required to form a new state. So, although the idea of the Navajo Nation becoming the fifty-first state of the Union seems farfetched, considering the possibility provides a way to better understand both statehood and the hard choices Indian nations must make.

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