This comes just weeks after the Tenth Circuit reversed the District of Utah’s dismissal of the lawsuits seeking to dismantle the Bears Ears and Grand Staircase-Escalante National Monuments. The Tenth Circuit’s decision remanded the matter back to the District Court for further proceedings. Here is the briefing from the Tenth Circuit.
This Article examines the Supreme Court’s use of history and tradition in federal Indian law. In recent years, the Court has increasingly relied on Founding-era practices and historical traditions to determine constitutional meaning in areas such as firearm regulation, substantive due process, and religious liberty. At the same time, while the Founding-era record contains substantial evidence that Native nations were understood and treated as independent, sovereign political communities, this evidence has not yet been fully incorporated into the Supreme Court’s Indian law jurisprudence. Examining decisions from Oliphant to Castro-Huerta, this Article describes the Court’s approaches to historical analysis in Indian law cases and identifies areas where deeper engagement with the historical record could inform the doctrine. By centering Indian law within the broader history-and-tradition framework, this Article argues that more consistent applications of history support the robust conception of tribal sovereignty contemplated at the Founding.
Buffalo Bill and Herman Melville flashing west coast gang signs— Ray Martin Abeyta
On June 29, 2026, the Supreme Court, in Watson v. Republican National Committee, allowed Mississippi ballots cast on time to be counted after Election Day, as permitted under state law. The decision respects longstanding absentee ballot receipt rules. It also protects Native voters who are disproportionately affected by a dearth of voter services and postal delays beyond their control.
An amicus brief on behalf of the National Congress of American Indians, Alaska Federation of Natives, and Washington Conservation Action Education Fund was filed in the case. The brief explained that Native voters often are forced to mail in ballots because in-person voting is made less available in their communities. Meanwhile, Native communities often lack reliable mail delivery, have fewer postal services, and endure longer mail transit time, especially in Alaska Native communities. You can see the brief here.
The article discusses the legal history of enslavement of American Indians, particularly Navajos, in territorial New Mexico during the Civil War and Reconstruction. It focuses Indian slavery within the relationship between the Navajo Nation and the Federal Government from 1846 to 1877, spanning the federal occupation of New Mexico in the Mexican-American War to the end of Reconstruction. It discusses in detail the role of the Army, the Office of Indian Affairs, and Congress in declaring the legal emancipation of Navajos and other Indian slaves but failing in implementing true liberation. It also discusses the role of the slavery issue in the negotiations and implementation of the Navajo Treaty of 1868, and the failure of General William Tecumseh Sherman and other federal officials to liberate Navajo slaves after the execution of the Treaty and the return of Navajos to their homeland. The article concludes with a discussion of why the Federal government tolerated the continued existence of Navajo slavery despite the end of southern slavery, and its place in the longer arc of federal assimilation policies against Indian people.
In Oklahoma v. Castro-Huerta (2022), the Supreme Court dismantled the long-standing black-letter principle that states lack criminal jurisdiction in Indian country absent congressional authorization by embracing a revisionist historical account emphasizing inherent state sovereignty. The consequences have been predictable: intense uncertainty and ongoing litigation. Oklahoma’s highest courts, for instance, have repeatedly endorsed inherent state jurisdiction over Native people within Indian country, employing Castro-Huerta to distinguish considerable contrary federal law and precedent.
The challenge, especially given the current history-minded judiciary, is that the claim that states have never asserted inherent criminal jurisdiction over Indian country is too simplistic and easily disproven, making it tempting to toss out the old rules. But the revisionist claim, advanced by some scholars and embraced by Justice Thomas, that states enjoyed expansive criminal jurisdiction, is also wrong. This Article attempts to offer a more rigorous legal history, moving beyond the handful of Supreme Court decisions to survey every identifiable state and federal case on inherent state criminal jurisdiction in Indian country. It depicts four distinct periods: an initial headlong assault on federal authority (1787–1834) ; an era of “great confusion” in which states pressed on the many uncertainties of federal Indian law (1835–1886) ; the jurisdictional chaos of the allotment era (1880s–1930s); and a period of relative statutory stability (1948–2022) that Castro-Huerta has now abruptly terminated. What this history shows above all is contestation—a cat-and-mouse game in which states seized on ambiguities to claim authority, only to be periodically rebuffed by the federal courts. But the mere existence of past conflict does not support broader state jurisdiction in Indian country. Rather, every conventional method of legal and constitutional interpretation undercuts the argument that such jurisdiction was ever meaningfully positive law. There are also strong normative reasons for skepticism, since state claims of authority were rarely motivated by public safety but were instead tools to facilitate Native dispossession and erode tribal self-governance. By recounting these complexities, the Article challenges the current legal instability that threatens the foundations of modern tribal sovereignty.
On May 18, 2026, in Turtle Mountain Band of Chippewa Indians v. Howe,the petition for a writ of certiorari to the U.S. Court of Appeals for the Eighth Circuit was granted, the judgment was vacated, and the case was remanded to the Eighth Circuit in light of Louisiana v. Callais (2026). You can see the order here.
You can see the cert petition here and Eighth Circuit materials here. You can see more about the Supreme Court’s decision in Louisiana v. Callaishere and the opinion here.
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