At the time of the founding of this nation, the colonists needed the peace and friendship of the tribal nations, which outnumbered them, for protection against the forces deployed by the crown of England seeking to crush their rebellion. Had tribal nations opted to side with the French or British, the tale of this country might be greatly different. Instead, the promises made by Benjamin Franklin and other Founding Fathers that their sovereignty would be respected and their lands and territory inviolate without their consent in return for their neutrality gave a chance for the fledgling United States to realize independence.
The first effort of the colonists to form a more perfect union was to adopt the Articles of Confederation which, because it gave all power to the states with little central government control, proved a dismal failure. Contrary to promises of peace and friendship made by Franklin and others embodied in treaties, states commenced wars with tribal nations in order to obtain their territory and subject those lands to settlement and convert those unused lands to pursuits such as agriculture. Consequently, a constitution was adopted placing authority over certain matters, including relations with tribal nations in the hands of a federal government having exclusive treaty-making power. That was the intent of the Founding Fathers as reflected in the text of the U. S. Constitution. The autonomous authority of tribal nations was assured of federal protection against intrusion and they were dealt with in essentially the same manner as foreign nations according to The Law of Nations, a treatise upon which much of the U. S. Constitution is based—not to mention that, in order to realize their dream of a country whose governance was based upon freedom, equality, and egalitarian relations among its citizens rather than ruled by a despotic leader, the colonists borrowed many principles of governance embodied in the Constitution from the Six Great Nations of the Iroquois Confederacy.
Today, several members of the U. S. Supreme Court deem themselves “originalists” or “strict constructionists” whose duty it is to decide cases based upon constitutional intent at the time of its adoption as reflected in its original terms. Well, far as I can see, the intent outlined above is evident. This nation could not have made it through its formative years without recognizing its dependence on what were then powerful sovereign nations with whom a solemn pact was made and never to be broken. The recent Castro-Huerta decision bodes well for the elevation of state sovereignty. For tribal nations, not so much.
Stemming from a case of child neglect in Oklahoma, the Court in Oklahoma v. Castro-Huerta ruled 5-4 that the federal government and states “have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.”
As befits their role as strict constructionists, the Supreme Court recently looked to the language of the Constitution and considered the era of its adoption to conclude there was no mention of abortion or rights of privacy therein, nor were there such constraints on the right to bear arms. However, as to the authority for state criminal jurisdiction within tribal lands, the Court, at least in my opinion, cast aside its originalist philosophy and decided that such constraints on state authority in Indian Country is an outdated idea, considering the alleged state of lawlessness arising from its 2020 McGirt decision.
I cannot see how such a determination is either originalist or strict constructionist in thinking. Rather it is a process that selectively builds contemporary opinions toward a disfavored segment of society. An alliance of tribal nations could have obliterated this nation at the time it was a mere thought in the minds of colonists but chose instead to believe the promises of independence and protection of the federal government made to them in 1789 and before. That is what an originalist would have concluded—that the promise made in a sacred constitution carries forward to today.
