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Persisting Sovereignties

From the first days of the United States, the story of sovereignty has not been one
of a simple division between the federal government and the states of the Union.
Then, as today, American Indian tribes persisted as self-governing peoples with
ongoing and important political relationships with the United States. And then, as today, there was debate about the proper legal characterization of those relationships.
The United States Supreme Court confronted that debate in McGirt v. Oklahoma
when, in an opinion by Justice Neil Gorsuch, it held that the reservation of the
Muscogee (Creek) Nation “persists today.” The Court’s recognition of the persistence
of Tribal sovereignty triggered a flurry of critical commentary, including from federal
lawmakers who share Justice Gorsuch’s commitment to originalism. But the early
history of federal Indian law supports the persistence of tribal sovereignty.