Ok, so there’s only that brief so far. Also, since the defendant stipulated to tribal membership with Nez Perce, I doubt this has legs, but it’s the kind of full-throated attack on the Indian status cases arising under the Indian country criminal jurisdiction statutes that we should expect more regularly — i.e., the kind that relies a LOT on single-authored concurrences and dissents from a certain SCT Justice that tends to rely on discredited historical research.
Here’s the lower court judgment (nothing terribly helpful here since the defendant stipulated to tribal membership):
Oklahoma v. Castro‑Huerta is an unprecedented attack on the autonomy of Native American nations in the United States. The Supreme Court held that Oklahoma had jurisdiction over a crime committed by a non‑Indian perpetrator against an Indian victim within the Cherokee Reservation’s boundaries. The decision posits that states presumptively have jurisdiction, concurrent with the federal government, over crimes by non‑Indians against Indians in Indian country. But this proposition is at war with a bedrock principle of Indian law, namely, that reservations are essentially “free from state jurisdiction and control,” a policy that “is deeply rooted in the Nation’s history.” That principle has stood the test of time, with the high court itself guarding tribes’ autonomy and sovereignty in celebrated Indian law cases dating to the nation’s founding.
Castro‑Huerta drastically extends the reach of state authority into Indian country, and it does so by imposing a dubious, revisionist retelling of the history of U.S.‑tribal relations. The false narrative forged by the majority reflects an extremist “states’‑rights” ideology aggressively projected onto the field of Indian law, threatening to “wip[e] away centuries of tradition and practice” by uprooting a core historical principle protective of Indigenous rights. The decision provoked an immediate U.S. governmental response, with a House subcommittee holding hearings and the Justice and Interior Departments conducting listening sessions in September 2022 to begin assessing the case’s dire implications. Scholarly criticism already is underway as well and likely will proliferate and intensify. With so much at stake for the preservation of tribal sovereignty and the future of federal Indian law, unmasking and deconstructing the decision will remain a pressing project for years to come.
This Article contributes to the project by examining the long line of historical Supreme Court precedents addressing state authority in Indian country to discern and explain their true significance. In addition, the Article casts light on a few important issues in Castro‑Huerta from a unique source: the papers of individual Justices archived at the Library of Congress and various universities across the country. A point of departure is Justice Neil Gorsuch’s dissenting opinion in the case, a searing critique that delves incisively into many of the relevant precedents, exposing numerous flaws and fallacies in the majority’s analysis and laying the groundwork for additional commentary and criticism. Anchored in that foundation of principled critical assessment, this Article endeavors to help fill in some of the serious gaps and omissions in the majority’s treatment of state authority in Indian country while periodically referencing the “Indian Law Justice Files” to further illuminate the case’s alarming distortions of history and precedent.
United States (“U.S.”) courts have long failed to recognize the value of oral traditional evidence (“OTE”) in the law. Yet, for Indigenous peoples, OTE forms the basis of many of their claims to place, property, and political power. In Canada, courts must examine Indigenous OTE on “equal footing” with other forms of admissible evidence. While legal scholars have suggested applying Canadian precedent to U.S. law regarding OTE, scholarship has generally failed to critically examine the underlying ethos of settler courts as a barrier to OTE admission and usefulness. This essay uses the work of political philosopher, James Tully, to examine OTE not just as evidence, but as an exercise of Indigenous self-determination. By recognizing the inherent political nature of OTE, U.S. courts may expand on Canadian law to build a “just relationship” with Indigenous peoples.
Turtle Talk 
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