Ius & Iustitium is happy to present this guest post by Dr. Jonathan Askonas. Dr. Askonas is an assistant professor of politics at the Catholic University of America and a Fellow at the Center for the Study of Statesmanship.
Last week, the Supreme Court issued a stunning decision in favor of tribal sovereignty in McGirt v. Oklahoma. The case turned on the question of whether the Creek reservation was ever disestablished by Congress, and therefore whether Creek sovereignty was extinguished in favor of the State of Oklahoma. Most of the arguments in the opinion are over whether Congress’s various actions diminishing or infringing on the original rights granted to the Creek were sufficient to count for disestablishment. But underlying the dissenting opinion (that Congress had disestablished the Creek reservation) is a fatal flaw: the collapsing of the distinction between imperium and dominium that is essential to the ius gentium and that is explicitly incorporated into American constitutional law on this very issue.
Continue reading “Ius Gentium and Tribal Sovereignty”