Excerpted From: Gregory Ablavsky, Too Much History: Castro-huerta and the Problem of Change in Indian Law, 2022 Supreme Court Review 293 (2022) (289 Footnotes) (Full Document)


GregoryAblavsky.jpeg[T]he controlling and conclusive position assumed as the basis of that judgment [Worcester v. Georgia], that the Indian Nations were distinct and sovereign political communities, independent of the States, is confidently believed to be incorrect, and that sooner or later it must be abandoned. (State v. Foreman, 16 Tenn. 256, 335 (1835).)

Despite bitter criticism and the defiance of Georgia which refused to obey this Court's mandate in Worcester the broad principles of that decision came to be accepted as law. Over the years this Court has modified these principles in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized, but the basic policy of Worcester has remained. (Williams v. Lee, 358 U.S. 217, 219 (1959).)

'[C]riminal jurisdiction in Indian country is an indefensible morass of complex, conflicting, and illogical commands layered in over decades via congressional policies and court decisions and without the consent of tribal nations.' ... [T]hat leads me to think that one of the things we should be trying to do here is--is to do no harm because there's lots of ripple effects from a broad decision. ( Justice Kavanaugh, Transcript of Oral Argument at 56-57, United States v. Cooley, 141 S. Ct. 1638 (2021) (No. 19-1414).)

In a vivid scene in The Round House, Louise Erdrich's powerful novel of criminal justice in Indian country, the main character's father, a tribal court judge, tries to explain federal Indian law to his son by pulling a rancid casserole from the fridge. The judge analogizes each rotten bit of sludge to a different terrible precedent--Johnson v. M'Intosh, Lone Wolf v. Hitchcock, Tee-Hit-Ton Indians v. United States. Only one opinion, symbolized by a stabilizing carving knife, provides a solid footing for the precarious pile of cutlery that represents Indian law. "Worcester v. Georgia," the judge explains. "Now, that would be a better foundation."

Chief Justice Marshall's 1832 opinion, in the midst of Georgia's attempted ethnic cleansing of the Cherokee Nation, invalidated the state's claim to jurisdiction over Cherokee lands. The "treaties and laws of the United States," Marshall ruled, "contemplate the Indian territory as completely separated from that of the states." Scholars have celebrated the decision as the rare moment when the Court resisted the overwhelming tide of nineteenth-century Anglo-American racism. They have also described the ruling--which substantially limited state authority in Indian country and affirmed tribal autonomy--as "[t]he foundational case in federal Indian law."

Yet Worcester now wears an ominous red flag in Westlaw: "Abrogation Recognized by Oklahoma v. Castro-Huerta."

The Supreme Court's decision in Castro-Huerta held that states possess criminal jurisdiction over non-Indian offenses against Indians in Indian country concurrently with the federal government--was at once one of the least and most mysterious outcomes of the past Term. Least, because, even in a Term rife with decisions that critics derided as nakedly ideological, the realist take on this decision is hard to contest. Two Terms ago, in McGirt v. Oklahoma, Justice Gorsuch, joined by the then-four liberal Justices, held that the Muscogee Creek Reservation in eastern Oklahoma had never been disestablished and therefore remained, legally, Indian country. The four other conservative Justices vigorously dissented. So when Justice Barrett replaced Justice Ginsburg, Oklahoma, sensing an opportunity, waged a prolonged campaign to overturn, or at least substantially cabin, McGirt.

Castro-Huerta vindicated this strategy: Gorsuch and the other three remaining members of the McGirt majority found themselves dissenting against the four McGirt dissenters, who, bolstered by Justice Barrett, now constituted the majority. Writing for that majority, Justice Kavanaugh's opinion did not hide its underlying motivation: Its opening section replicated Oklahoma's contested sky-is-falling narrative of post-McGirt criminal justice that was, as a formal matter, legally irrelevant. Few other cases this past Term--even, perhaps, Dobbs and Bruen demonstrated quite so vividly Justice Kagan's anxiety about the optics of dramatic legal shifts when a single Justice changes.

Yet doctrinally, Castro-Huerta is much more mysterious. Because the Court declined to overrule McGirt, many commentators portrayed Castro-Huerta as a narrow decision. Legally, though, the decision swept much more broadly than a simple reversal of McGirt would have. Fundamentally altering long-assumed rules, it judicially expanded the scope of state criminal jurisdiction in Indian country for the first time since 1882. Moreover, the holding applied not just in Oklahoma but in every state, even though only a handful of predictable red-state attorneys general--notably excluding conservative-leaning states like Utah, Idaho, or Montana that have large Native populations--had filed to support Oklahoma.

In reaching this result, the Court argued that it was construing for the first time the relevant statutory text in the General Crimes Act, which reads: "[T]he general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States ... shall extend to the Indian country." This statutory language had been unchanged since first drafted in 1834, and derived from still earlier provisions tracing back to 1790. Six prior Supreme Court decisions had concluded that states lacked criminal jurisdiction over the category of crime at issue here--non-Indian perpetrators against Indian victims--but the Court distinguished these statements as dicta because they had not explicitly relied on the statutory text. As for the relevant background jurisdictional rules, the majority acknowledged that what it dubbed "territorial separation"--that Indian country lay outside state control--was not only the original Founding-era legal understanding but also the holding of the Court's seminal decision in Worcester v. Georgia. Yet, despite the absence of any change in either statutory or constitutional text, this principle, the Court argued, "was abandoned" by the Supreme Court over the course of the nineteenth and twentieth centuries.

Like Justice Gorsuch's sharply worded dissent, I disagree with these conclusions. But rather than relitigating the case, I think it is more fruitful to place Castro-Huerta in broader perspective. Castro-Huerta exemplified many of the flaws that scholars have criticized in the Court's Indian law jurisprudence for decades--especially the Justices' reliance on their own subjective assessments to craft law. Building on this work, this Article examines a less explored aspect of the Court's undisciplined, subjective jurisprudence in Indian law that Castro-Huerta also epitomized. I call this the problem of too much history.

What I mean by "too much history" is that, in Indian law, judges and litigants must make sense of over two centuries of conflicting debates over jurisdiction in Indian country, 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 the issue of 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, partly because of the volume of potential evidence and partly because of the uncertain weight that long-ago precedents deserve in the present.

This conundrum leads, in my view, to two broad types of judicial use of history in Indian law. "Good" history decisions, epitomized by the Court's decision this Term 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, I reexamine 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.

History loomed especially large in this past Term. For Indian law, though, this is not new: history has long played a key, even outsized, role in the field. Many commentators have now vociferously contested the claim that the Court's inquiry into history provides an objective, value-neutral basis for legal judgments. But this, too, is not news for Indian country. The field has long offered something of a cautionary tale of what happens when an undisciplined Court is presented with a bonanza of historical evidence and few methodological guidelines or much rigor to constrain its use. In this sense, the entire nation is now confronting what Native peoples have long known.

[. . .]

Much has changed in the ensuing two centuries, but Castro-Huerta suggested at least one important continuity. State efforts to claim jurisdiction in Indian country have always been about power--aggrandizing their own and diminishing tribes'. The facts surrounding Castro-Huerta, no less than the battles around Worcester, suggest less concern for actual governance than the anger of state officials who see in tribes "rivals of sovereignty," in the words of the Removal era. Oklahoma, like Georgia before it, has narrowly succeeded in provoking a partisan battle to get the federal government to endorse its pretensions. Perhaps the states will use their newfound jurisdiction responsibly and not simply seek their own authority at the expense of tribes'. But history gives good reason to doubt.

Gregory Ablavsky is the Marion Rice Kirkwood Professor of Law at Stanford Law School; Professor of History (by Courtesy) at Stanford University.