Ezra Rosser (American University – Washington College of Law) has posted Navajo Statehood: From Domestic Dependent Nation to 51st State (101 Oregon Law Review 307 (2023)) on SSRN. Here is the abstract:
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.