New Article: Philip S. Mullenix & Ezra Rosser, Navajo Statehood: From Domestic Dependent Nation to 51st State, 101 Oregon L. Rev. 307 (2023). Abstract below:
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, it also is incompatible with the lived experience of those living on 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 only demarcate 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, Navajo Nation already meets many of the attributes required for the formation of a new state and journalists, academics, and politicians have floated the possibility. So, while the idea of the Navajo Nation becoming the 51st state of the Union seem far-fetched, considering the possibility provides a way to better understand both statehood and the hard choices Indian nations must make.
-Note: This is the first paper I have ever written with a student, but Philip is hardly a typical law student. He came to law school as a surgeon and I got to know him as the fastest reader I have ever met, with a passion for both knowledge and for matters related to tribes. It may be a while until I write another article with a student, but only because Philip set the bar so high.
This article came out of a question I was asked by a candidate for the position of Navajo Nation President before the last Navajo election: should he/she push for statehood? It is a question that Navajo officials raise periodically, but I didn’t have an answer nor a way to help tribal leaders consider such a question. This is an effort to give a partial answer. Ultimately of course, the answer will come from tribal members and from the Navajo Nation government.
Poverty Law 