Link to Stanford Law article here.
Let me give you an important example from this case, based on what Dollar General seems to think is its strongest historical argument. The company relies heavily on a couple of treaties with two Native nations in what is today Oklahoma—treaties that seem to strip civil jurisdiction over non-Natives from those tribes in particular. But those treaties are hardly representative of the history of even those two tribes, let alone all the histories of all of the over five hundred different federally recognized tribes. Soon after the handful of treaties referenced by Dollar General, the federal government began contemplating an Indian state in what was then Indian Territory, so it entered new treaties that explicitly granted this new Native government civil jurisdiction over non-members. Later in that century, Congress reversed course and, in creating the state of Oklahoma, abolished tribal courts there altogether. But only thirty years after that, in the 1930s, Congress changed policy again, and passed a law that permitted the re-establishment of tribal courts in Oklahoma. And this is just two Native nations over a span of eighty years. This single example, I think, suggests some of the challenges: we simply can’t distill centuries of change and contradiction into a single, unambiguous narrative.