Placeholder while article actions are loading
Gregory Ablawski is a professor of law and Elizabeth Hidalgo Rees is an assistant professor of law at Stanford Law School.
Amid many important decisions by the Supreme Court in the last week of its term, the importance of Oklahoma vs. Castro-Huerta — a fight over jurisdiction involving Indian reservations — may go unnoticed. But its ramifications will reach far beyond Oklahoma and its land disputes.
The 5-to-4 ruling, released Wednesday, blunts the effects of the court’s 2020 ruling. McGirt v. Oklahoma, which established that much of Oklahoma is legally Indian Country, where many crimes are beyond the reach of the state and its laws. With its new, sweeping decision, the court restores some of Oklahoma’s prior period.McGirt authority over this territory by overturning the reservation law throughout the country.
The court ruled this on Wednesday all countries have, as a matter of state sovereignty, the power to prosecute non-Indian crimes on Native lands. And in a bold statement that departed from centuries of federal Indian law precedent, Justice Brett M. Kavanaugh wrote for the majority: “Indian country is part of the state, not separate from the state.”
To put it bluntly, this decision is an act of conquest. And it could signal a sea change in federal Indian law, ushering in a new era governed by selective ignorance of history and deference to state authority.
The majority opinion describes the question of state jurisdiction over crimes as having “newfound significance” only after McGirt and further insists that “the exercise of state jurisdiction here would not violate tribal self-government.”
Nothing could be further from the truth.
This is hardly the first struggle for state power in Indian country. Indigenous peoples have long fought desperately to prevent state encroachment on tribal lands.
in McGirtJustice Neil M. Gorsuch’s opinion eloquently begins: “At the far end of the Trail of Tears there was promise.” To understand Castro Huertawe need to look at why the Trail of Tears happened in the first place.
In 1830, the southern states, including Georgia, wanted Indian land. They aggressively claimed jurisdiction over the local territory within their borders so that they could destroy the tribal communities. Seeking to expel non-Indian missionaries helping the Cherokee, Georgia made it a crime for any non-Indian to be on Cherokee territory without the state’s permission.
The Cherokee Nation challenged the Georgia law and took its case to the Supreme Court. in Worcester vs. Georgia, Chief Justice John Marshall ruled in 1832 that the Constitution granted the federal government exclusive power to govern relations with local nations. According to him, the penal laws of Georgia “have no force” in the Cherokee territory because the Cherokee Nation remains a “nation” — a “separate community occupying its own territory” which, although part of the United States, “does not thereby cease to be sovereign and independent.”
Georgia ignored the court, sold the lands to the Cherokees, and sent in its militia. In desperation, some Cherokee signed a treaty agreeing to be moved to present-day Oklahoma, with the promise that their new lands would remain free of government control. Others refused, only to be forced at bayonet.
Despite the brutal consequences and subsequent erosion at the edges, Worcester The hard-won observance — that indigenous nations remain independent from states — remains good law so far.
The Castro Huerta the court picked up where Georgia left off, stating that “ Worcesterthe understanding of the Indian state as separate from the state was abandoned” later in the 1800s.
As scholars who have devoted our lives to the study of this area of law, we are perplexed. When and how did this alleged abandonment occur? The majority relies not on founding-era understandings or canonical federal Indian law cases, but on selected subsidiary cases and arguments from the late 19th century with subsequently rejected foundations.
This is not the way originalism is supposed to work. Originalism would turn to the history of the founding era that it supported Worcester. As Gorsuch traces in his Castro Huerta dissent, this context underscores the importance of tribal independence from state law in securing peace in the early days of the republic. “Indeed,” wrote Gorsuch, “a more ahistorical and erroneous statement of Indian law would be hard to fathom.”
Now, as in 1830, jurisdiction is associated with power. States then sought to control Indian country not to protect Native people, but to undermine tribal sovereignty. Perhaps today states will choose not to use their newly granted power to usurp tribal authority over their lands. But there is good reason to doubt it.
For example, last week there were scenarios where tribes or the federal government could protect access to reproductive care on tribal lands. Now, after the Supreme Court overturned the Roe v. Wadethere is nothing to prevent a surrounding state from trespassing on tribal lands and persecuting non-Indian doctors or women – no matter what the tribe has to say about it.
We hope that much of this unnecessarily broad opinion will be interpreted narrowly and carefully by future courts. But Castro Huerta is more than a jurisdictional dispute. Like the other cases decided in the last week of the court’s term, it is a sweeping rewrite of existing law that overrules seminal precedent — and could have profound implications for indigenous nations and their power.
Add Comment