The Supreme Court ruling in McGirt v. Oklahoma drastically changed the legal jurisdiction of most of the state of Oklahoma under federal law. In 2017 the 10th Circuit held in Murphy v. Royal that the Oklahoma Enabling Act of 1906 never disestablished the reservations of the Five Civilized Tribes and the Supreme Court would concur with that opinion in McGirt v. Oklahoma which means that the Major Crimes Act and other federal and tribal laws relating to Indians now apply in Eastern Oklahoma, including the City of Tulsa, and not Oklahoma law in applicable cases. In doing so, the Supreme Court inadvertently created a white-collar crime jurisdictional nightmare but one that has many solutions that enshrine tribal sovereignty and corporate responsibility among Tulsa based businesses. These solutions include state and tribal compacts, congressional legislation and proactive measures by Tulsa corporations such as “McGirt forms” that list Indian status of involved parties under federal law in case of a crime, choice of law provisions in contracts for civil suits in Tribal Courts so that corporations know what to expect and can shape the outcome of a case and working with local law schools so that new hires are prepared for the post McGirt and Castro-Huerta landscape.
Michael Doran has posted “Tribal Sovereignty Preempted,” forthcoming in the Brooklyn Law Review, on SSRN. Here is the abstract:
In June of 2022, the U.S. Supreme Court held in Oklahoma vs. Castro-Huerta that a state may prosecute a non-Indian for a crime committed against an Indian within Indian country. That decision effectively overruled Worcester vs. Georgia, an 1832 landmark case in which Chief Justice Marshall said that state law “can have no force” in Indian country. Although the conventional wisdom sees Castro-Huerta as a radical departure from first principles of federal Indian law, I argue that it is the natural – although deeply deplorable – next step in a long line of Supreme Court decisions expanding state governmental authority within Indian country. Additionally, this line mirrors a separate line restricting tribal governmental authority within Indian country. Through a critical examination of these decisions, I show how the Supreme Court over the last half century has systematically privileged state interests and the interests of individual non-Indians over tribal interests and that, in so doing, the Court has arrogated to itself the political function of defining tribal sovereignty. I argue that Congress should reject the Court’s relentless subordination of Indian interests to non-Indian interests and reassert its role in defining and defending a robust conception of tribal sovereignty.
In addition to its stunning internal flaws, the United States Supreme Court’s opinion in Oklahoma v. Castro-Huerta exemplifies Indian law’s broader flaws as a jurisprudence. Castro-Huerta holds that states have concurrent criminal jurisdiction with federal and tribal governments over crimes by non-Indians against Indians on reservation lands. Justice Gorsuch deftly addresses many of the glaring internal flaws in Kavanaugh’s majority opinion, but not all. He does not dissect the hollow assertion that reservations are part of the surrounding state both geographically and politically. This cannot go unaddressed, particularly given its weak analysis, misguided use of precedent, and broader consequences.
Castro-Huerta’s holding affects the precise kind of “jurisdictional overlap” at the root of the slow erosion of tribal sovereignty over time, as first explained in a prior article. The Founders believed two governments generally cannot co-exist, i.e. overlap. They had a firm idea of what happens when jurisdictional overlap occurs: one government slowly subsumes the other over time until nothing meaningful is left, here labeled “competitive sovereign erosion.” The Founding Fathers believed this proposition so much and feared it so deeply that it played a central role in how the Constitution was written, specifically the categorical division of authority between the federal and state governments. Tribal sovereignty will continue to be vulnerable to competitive sovereign erosion until a solution is reached that results in either a respect for tribal borders, or a qualitative division of governmental authority between tribal governments, the federal government, and the states. Anything less will continue the long-term war of sovereign attrition historically experienced by tribes.
Analyzing Indian law as a competitive sovereign erosion problem of the sort contemplated by the Framers and discussing it in terms of United States federalism has additional jurisprudential and advocacy advantages. Doing so disconnects Indian law from the tortured logic exemplified by Castro used to reach anti-Indian results, and reconnects it to the intuitively fair, commonly accepted, and historically effective answers used when White cultures have had the same kinds of problems. From an advocacy perspective, competitive erosion adopts a conceptual framework and lexicon that resonates with conservatives commonly opposed to tribal sovereignty. Using competitive erosion can present tribal sovereignty in a way that persuadable conservatives can embrace.
Tribes wanting to maintain their separate existence need to overturn the assertion that reservations are part of the state, oppose practices that give the appearance of being part of state government, and push congress for legislation that will eliminate jurisdictional overlap between tribes, states, and the federal government.
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.
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.
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.
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.
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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.
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