John LaVelle on Castro-Huerta

John P. LaVelle has published Surviving Castro-Huerta: The Historical Perseverance of the Basic Policy of Worcester v. Georgia Protecting Tribal Autonomy, Notwithstanding One Supreme Court Opinion’s Errant Narrative to the Contrary in the Mercer Law Review.

Here is the abstract:

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.

Jaune Smith

Kirsten Carlson on the Democratic Difficulties of Castro-Huerta

Kirsten Matoy Carlson has published “The Democratic Difficulties of Oklahoma v. Castro-Huerta” in New Political Science. Here is the abstract:

The Supreme Court, some commentators argue, is at its most undemocratic since the Lochner Era in the 1930s. They point to the Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization, which departs from public opinion on abortion and longstanding constitutional precedence. Dobbs, however, is not an outlier. The Supreme Court made a similar move in Oklahoma v. Castro-Huerta. The majority opinion questioned almost 200 years of constitutional interpretation and several decades of congressional policy to enable state governments to exercise criminal authority over non-Indians in Indian Country. This article compares the majority opinion in Castro-Huerta to congressional policy to explore the democratic and constitutional difficulties that can arise when the Supreme Court refuses to defer to Congress—the democratically elected and constitutionally appointed institution for making federal Indian policy. It reveals how the Court’s undemocratic turn extends beyond cases involving individual rights.

Leeds, Miller, Washburn, and Beetso on Castro-Huerta

Stacy Leeds, Robert J. Miller, Kevin K. Washburn, and Derrick Beetso have posted “Oklahoma v. Castro-Huerta — Rebalancing Federal-State-Tribal Power,” previously published in the Journal of Appellate Process and Practice, on SSRN. Here is the abstract:

The Supreme Court’s unexpected decision in Oklahoma v. Castro-Huerta in 2022 overturned established precedent and scrambled long-settled expectations about the division of criminal jurisdiction in Indian country. In this panel discussion shortly after the decision was issued, the authors provided a “hot take” on the Castro-Huerta decision and discussed its impact on criminal justice in Indian country and on federal Indian law more broadly.

We previously posted this symposium issue here.

Greg Ablavsky on Castro-Huerta

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.

More Jaune Smith

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.

Dylan Hedden-Nicely on the Continued Vitality of Worcester v. Georgia

Dylan Hedden-Nicely has posted “The Reports of My Death Are Greatly Exaggerated: The Continued Vitality of Worcester v. Georgia,” forthcoming in the Southwestern Law Review, on SSRN.

Here is the abstract:

Rumors abound among the academy, practitioners, and the judiciary about the death of Worcester v. Georgia since the Court’s recent decision in Oklahoma v. Castro-Huerta. The misunderstanding is compounded by those that fail to take the time necessary to appreciate the rich nuance of Chief Justice John Marshall’s decision or in the subtle ways the Court has since modified its holding from Worcester. However, the importance of this case, which is integral to our entire system of federal Indian law, to major components of our constitutional system, as well as to our claim to leader in the human rights arena, mandates we proceed with caution and demand precision in its treatment. We cannot presume the abrogation of such a significant case based on veiled rhetoric that stitches together dicta built upon dicta. Instead, we should proceed by acknowledging the broad scope of Worcester’s original holding and carefully examining where and how the Supreme Court has since circumscribed its breadth.

In furtherance of that call, this paper focusses on the Court’s Indian law jurisprudence around the middle of the twentieth century to provide a clearer picture of how the Court has treated Worcester in the modern era and the ways in which it has been limited. That analysis leads to the inescapable conclusion that although the Court has abandoned Worcester’s categorical prohibition on state jurisdiction in Indian country, “the broad principles of that decision came to be accepted as law.” Accordingly, until such time as the Court “openly avow[s]” its intent to overrule Worcester, we must remain faithful to its narrow authorization of state power in Indian country, as well as its broad recognition of tribal sovereignty and federal primacy over the relationship with tribal nations.

Grant Christensen on Using Consent to Expand Tribal Criminal Jurisdiction

Grand Christensen has posted “Using Consent to Expand Tribal Court Criminal Jurisdiction,” forthcoming in the California Law Review, on SSRN.

Navajo police officer photographed by Edward Curtis

Here is the abstract:

In June of 2022 the Supreme Court reversed two-hundred years of precedent and held in a 5-4 opinion that states have concurrent criminal jurisdiction over crimes committed by non-Indians against Indians in Indian country. Oklahoma v. Castro-Huerta. In conducting the preemption analysis Justice Kavanaugh’s majority opinion reasoned that while states have a strong interest in prosecuting crimes in Indian country in order to keep the community safe, tribes had functionally no interest because they generally lack criminal jurisdiction over non-Indians. The court then reasoned that the lack of a tribal interest could not preempt the state interest. This article suggests, despite the general prohibition on tribes asserting criminal jurisdiction over non-Indians that was discovered by the Supreme Court in 1978’s Oliphant opinion, tribes can assert criminal jurisdiction over non-Indians who consent to the jurisdiction in tribal court. The argument extends to both affirmative and implied consent and draws its authority from both pre-Oliphant scholarship and precedent as well as from recent development by the Court, Congress, and dicta from the Ninth Circuit. If tribes are able to regularly assert some criminal jurisdiction over non-Indians, then when lower courts apply Castro-Huerta in the future there will be a strong tribal interest to preempt state criminal jurisdiction in Indian country.

Highly recommended.

Dylan Hedden-Nicely on Castro-Huerta

Dylan Hedden-Nicely has posted “The Terms of their Deal: Revitalizing the Treaty Right to Limit State Jurisdiction in Indian Country” on SSRN.

The abstract:

For over two hundred years the “whole course of judicial decision” in the United States has recognized that American Indian tribes possess inherent sovereignty to govern their lands and people. Federal recognition of that sovereignty was memorialized in countless treaties, congressionally ratified agreements, and executive orders setting aside reservations throughout the United States. Throughout that same period, and with only minimal exception, the judiciary faithfully applied those treaties to protect tribal property rights, recognize tribal sovereignty, and to bar states from imposing jurisdiction within Indian Country.

The jurisprudence in this arena has shifted, however, over the past few decades. Although the Supreme Court continues to faithfully apply its longstanding treaty analysis to protect tribal property rights, it has moved away from using that same analysis when evaluating tribal sovereignty and the scope of state jurisdiction in Indian Country. Instead, as demonstrated by its recent decision in Oklahoma v. Castro-Huerta, the Court has articulated a preemption test that is determined by judicial balancing of the tribal, federal, and state interests in the subject matter the state seeks to regulate. The approach has long been criticized for allowing courts to usurp the legislative power of Congress to make policy in federal Indian law in order to “reach outcomes consistent with their own notions of how much tribal autonomy there ought to be.” The purpose of this article is to establish that this so-called balancing test has no basis in the foundational principles of federal Indian law. Instead, the broad sweep of the field demonstrates that tribal freedom from state jurisdiction within Indian Country should proceed as a treaty right analysis.

That analysis requires courts to determine whether the treaty at issue preempts state law within the reservation. In making that determination, courts must interpret the treaty consistent with background principles of tribal sovereignty, which necessitates that ambiguities be resolved in favor of the tribe and that any sovereignty not expressly ceded has been retained. Applying these principles, the Supreme Court has repeatedly found that the treaty right to a “permanent home” implicitly included the right for tribes to “govern themselves, free from state interference.” Once established, a treaty right may only be taken away by Congress. Once again, however, there remains a strong presumption against the abrogation of tribal sovereignty. Thus, the Court has consistently required there be “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.”

This article seeks to demonstrate that the Court’s treaty-based analysis of tribal sovereignty should be applied by the judiciary moving forward. It is preferable not only because it is more consistent with foundation principles of federal Indian law but also bedrock constitutional principles as well as basic twenty-first century domestic and international norms related to the treatment of indigenous peoples and self-determination.

Highly recommended!

Talton was probably a white guy.