Gregory Ablavsky has posted “State Criminal Jurisdiction in Indian Country: A History,” forthcoming in the Virginia Law Review, on SSRN.

Here is the abstract:

In Oklahoma v. Castro-Huerta (2022), the Supreme Court dismantled the long-standing black-letter principle that states lack criminal jurisdiction in Indian country absent congressional authorization by embracing a revisionist historical account emphasizing inherent state sovereignty. The consequences have been predictable: intense uncertainty and ongoing litigation. Oklahoma’s highest courts, for instance, have repeatedly endorsed inherent state jurisdiction over Native people within Indian country, employing Castro-Huerta to distinguish considerable contrary federal law and precedent.

The challenge, especially given the current history-minded judiciary, is that the claim that states have never asserted inherent criminal jurisdiction over Indian country is too simplistic and easily disproven, making it tempting to toss out the old rules. But the revisionist claim, advanced by some scholars and embraced by Justice Thomas, that states enjoyed expansive criminal jurisdiction, is also wrong. This Article attempts to offer a more rigorous legal history, moving beyond the handful of Supreme Court decisions to survey every identifiable state and federal case on inherent state criminal jurisdiction in Indian country. It depicts four distinct periods: an initial headlong assault on federal authority (1787–1834) ; an era of “great confusion” in which states pressed on the many uncertainties of federal Indian law (1835–1886) ; the jurisdictional chaos of the allotment era (1880s–1930s); and a period of relative statutory stability (1948–2022) that Castro-Huerta has now abruptly terminated. What this history shows above all is contestation—a cat-and-mouse game in which states seized on ambiguities to claim authority, only to be periodically rebuffed by the federal courts. But the mere existence of past conflict does not support broader state jurisdiction in Indian country. Rather, every conventional method of legal and constitutional interpretation undercuts the argument that such jurisdiction was ever meaningfully positive law. There are also strong normative reasons for skepticism, since state claims of authority were rarely motivated by public safety but were instead tools to facilitate Native dispossession and erode tribal self-governance. By recounting these complexities, the Article challenges the current legal instability that threatens the foundations of modern tribal sovereignty.