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.