Gregory Ablavsky has posted “Too Much History: Castro Huerta and the Problem of Change in Indian Law,” forthcoming in the Supreme Court Review, on SSRN. Here is the abstract:

The Supreme Court’s decision last Term in Castro-Huerta v. Oklahoma dramatically rewrote the rules of criminal jurisdiction in federal Indian law. For the first time since 1882, the Court judicially expanded the scope of state criminal jurisdiction in Indian country, finding that states hold jurisdiction over Indian-on-non-Indian crime concurrently with the federal government. In reaching this conclusion, the Court exemplified the subjectivism that scholars have criticized in the Court’s Indian law jurisprudence for decades. The opinion distinguished or cast aside at least six prior decisions where the Court had seemingly reached the opposite conclusion, as well as concluding that the Court had already substantially limited the Court’s foundational holding in Worcester v. Georgia (1833) that Indian country ordinarily lies outside state authority.

Building on these earlier critiques, this Article uses Castro-Huerta to examine a less explored flaw in the Court’s Indian law rulings—what I call the problem of “too much history.” In Indian law, judges and litigants must make sense of over two centuries of jurisdictional debates, recorded largely not in statutes or constitutional provisions but in dozens of shifting Supreme Court decisions. The key question in Castro-Huerta, and the core of the dispute between majority and dissent, was change–how the law on state jurisdiction in Indian country had shifted over time. But the sheer mass of history makes it hard for the Justices to identify legitimate legal change in Indian law.

This conundrum leads to two broad types of judicial use of history in Indian law. “Good” history decisions, epitomized by this Term’s decision in Ysleta del Sur Pueblo v. Texas, employ specific context to examine narrowly defined legal questions. By contrast, “bad” history opinions, exemplified by Castro-Huerta, turn to the past as an independent source of law, ask broad, unanswerable questions of it, and provide no clear way to assess the inevitable heap of conflicting evidence.

Having laid out this challenge, the Article reexamines the question of the specific historical change at the core at Castro-Huerta. Rather than the majority’s narrative of abandonment and the dissent’s narrative of continuity, I think a more accurate account of what the Court has done with respect to state jurisdiction in Indian country is translation—trying to make sense of older legal principles within a new jurisprudential frame. But this approach makes the Court’s decisions in this area especially prone to misreading and selective citation, as Castro-Huerta underscored.