Excerpted From: Bryce Drapeaux, A New Entry into the Anti-Canon of Indian Law: Oklahoma v. Castro-Huerta and the Actual State of Things, 68 South Dakota Law Review 513 (2023) (324 Footnotes) (Full Document)


BryceDrapeaux.jpegSince the founding of this country, American Indian tribes have been condemned to an ambiguous and often perplexing position within the American constitutional system. Roughly two hundred years ago, in what has been called the “Marshall trilogy,” Chief Justice John Marshall affirmed some of the most significant hallmarks of Indian law. And although these hallmarks have mostly endured through the present day, the cases relying on them have been subjected to many interpretations. This has created a jurisdictional maze in Indian law that is difficult for most folks, including tribes, to navigate. Traditionally, the federal government and the tribes--not the states--have controlled criminal jurisdiction in Indian country. State involvement in matters of tribal jurisdiction has traditionally been well-delineated by federal statutes, beginning with the principle endorsed in 1832 in Worcester v. Georgia: that state laws can “have no force” in Indian country due to tribes' inherent sovereignty.

So too has tribal sovereignty been entrenched within the backdrop of the Supreme Court's Indian law preemption analysis: that tribal sovereignty should be respected and out of the state's reach unless Congress decides otherwise. Against this backdrop, the proper preemption analysis is one predominated by statutory interpretation--as are most cases involving federal Indian criminal law--in order to determine “whether the exercise of state authority has been pre-empted by operation of federal law.” Undeniably, the Court's decision departs substantially from basic Indian law preemption analysis, and thus gives much freight to the remark offered by Philip Frickey, the renowned Indian law professor, that “the precedential effect of federal Indian law decisions is often weak.” The 2022 decision in Oklahoma v. Castro-Huerta epitomizes this remark, considering how the Supreme Court employed such an innovative approach in its interpretation of such seminal cases and congressional statutes that have provided the bedrock of Indian law since the founding of the country. Since the Supreme Court's expansive role in Indian law has been characterized by some as controversial, the decision here may add further skepticism to the legitimacy of the Court at a time when trust in the Court is at an all-time low.

Justice Neil Gorsuch's dissent in Castro-Huerta captures well the full picture of the true history and precedents of Indian law and their foundational underpinnings, while identifying where the majority strays from fundamental canons that have been mostly respected by the Supreme Court for nearly two hundred years. This article does not merely reiterate Justice Gorsuch's adamant dissent, but also provides a contrasting analysis of the majority and dissent's opinions, and gives further context of the practical considerations--the actual state of things--of what concurrent state and federal criminal jurisdiction means for Indian country. History tells us that when states have been permitted to assume jurisdiction in Indian country, it creates a jurisdictional environment that negatively affects reservations and the Native Americans living there.

The five-four majority in Castro-Huerta, authored by Justice Kavanaugh, partly rested its decision as one that will help Indian tribes and reservation communities. But the paternalistic overtones are nothing new to Indian country and can be attributed to exacerbating the actual state of things there. What makes the Court believe its decision in Castro-Huerta will produce any significant difference in protecting Indian victims or empowering tribes? If America is truly in an era of tribal self-determination, the Court's decision here either ignored that policy, or even worse, determined for itself a new policy for federal Indian law--something more akin to legislating from the bench. Indeed, progress in state-tribal relationships is still possible and necessary for the prosperity of both sovereigns, but the Court's ruling in Castro-Huerta was a missed opportunity for tribal nations and states to more organically collaborate out of mutual respect as sovereigns under the concept of cooperative federalism. Instead, states are now empowered to further dismiss tribal sovereignty as the Supreme Court provided the states with yet another justification to infringe upon the criminal jurisdiction of Indian tribes.

The holding in Castro-Huerta minimizes the foundational canon established in Worcester: that tribal sovereignty prevails in matters involving Indian country unless clearly modified by Congress. And instead, replaced it with a new “anticanon”: that states have jurisdiction in Indian country unless state sovereignty is preempted by Congress. This decision will likely result in worsening conditions in Indian country and casts a harrowing shadow over what remains of tribal sovereignty. Given the historically bumpy relationship between states and tribes, and the current makeup of the Supreme Court and potential for its longevity, the most pragmatic recourse tribal nations have is to lobby Congress and demand that it restores the constitutional principles abrogated in Castro-Huerta to achieve a fairer system of justice. Merely closing our eyes and hoping Castro-Huerta is a one-off may prove to be futile.

In analyzing the Castro-Huerta decision, this article begins by describing the facts and procedural history in Part II. In Part III, this article provides an accounting of previous congressional enactments and Supreme Court jurisprudence surrounding federal Indian criminal law. Part IV returns to the Castro-Huerta case to describe the majority and dissenting opinions from the Supreme Court, accompanied by an analysis dictating which opinion, the majority or the dissent, more closely resembles the controlling law. Finally, Part V gives an overview of the likely practical considerations--the on-the-ground actual state of things--of the Castro-Huerta decision.

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The Supreme Court in Castro-Huerta claimed its ruling was consistent with past Indian law cases, reiterating that it rested its decision on the Court's precedents and laws enacted by Congress. But if the majority had truly observed the Court's prior rulings and congressional enactments, the outcome would have been utterly different. The elephant in the room is that the Court likely fell victim to the fear-mongering campaign of Oklahoma's executive branch, perhaps coupled with its preferred result, effectively altering the criminal jurisdictional framework in Indian country. The Court makes its ruling, in part, in order to “help” Indian tribes and their citizens--but evidence shows that state criminal justice has functioned poorly in Indian country. In its holding, the majority uses the General Crimes Act and Public Law 280 as its scapegoat. If tribal nations desire to change the Court's decision here, there must be an effective lobby of Congress--and a long game should be expected. The dark side is that this narrow holding might be expanded beyond the General Crimes Act to other federal criminal statutes and perhaps even into the civil jurisdictional realm--further threatening tribal sovereignty. The Court's ivory-towered analysis of the real world is personified in its decision in Castro-Huerta, and only time will tell of the serious implications this holding will have on Indian country, and ultimately, on tribal sovereignty.

J.D. Candidate, 2024, University of South Dakota Knudson School of Law; enrolled member of the Ponca Tribe of Nebraska.