The Supreme Court’s Conquest of Indian Country

The Supreme Court’s Conquest of Indian Country

Conquest in the Courts

Without having to sign a treaty or fight a war, a 5-4 majority handed the states presumptive power over Indian lands.


On June 29, the Supreme Court issued a bizarre and horrifying decision. In Oklahoma v. Castro-Huerta, a 5-4 Supreme Court majority held that a state can prosecute crimes against Indian victims by non-Indian people even if those crimes occur on Indian reservations. More concerning, however, is why the court said that states have this power. As Justice Brett Kavanaugh wrote: “The Court today holds that Indian country within a State’s territory is part of a State, not separate from a State,” reasoning that “as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.”

With a few sentences, the Supreme Court casually dismissed the hard-won legal promise of a domestic dependent nationhood free from state power. Without having to sign a treaty or fight a war, the Supreme Court handed the states presumptive power over Indian lands.

It is hard to find adequate words for what it feels like as a tribal citizen to read Kavanaugh’s words. How would Texans feel waking up to hear that their territory was now part of Louisiana—or, more accurately, a sovereign state they once waged a war for independence against, like Mexico? So many of my ancestors fought with everything they had for the survival of our tribal nations. They fought in the courts. They took to the streets. And, yes, they took up arms to fight for independence, dying on battlefields that litter this country. They fought not only against the US federal government but also against individual states or their preceding territorial governments who tried to seize tribal lands and push out or absorb Native communities.

The protections and respect for tribal sovereignty enshrined within federal Indian law today are there because Native people defied expectations—first, by surviving, and then by standing our ground as distinct nations who would not be assimilated into the United States. While we are certainly a part of America’s broader project of democracy, we have been committed, first and foremost, to preserving our own right to self-governance.

Indian tribes may have a unique status as domestic dependent nations within the United States, but they are not a part of a state. Indian tribes are self-governing states and always have been—or, at least, that is how 200 years of federal Indian law cases, federal statutes, American history, and basic logic would have described things before the Supreme Court seemed to suggest the opposite in Castro-Huerta.

To this law professor and expert in federal Indian law, this decision came out of nowhere. The opinion is unmoored from the key cases of federal Indian law and divorced from the realities of American history. Justice Neil Gorsuch—who has proved the remarkable utility of expertise in Indian law in just a few years on the Supreme Court bench—wrote a scathing dissent. In his analysis of the majority’s conclusion, he writes, “Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.”

To make matters worse, the majority opinion is insulting. Five Supreme Court justices apparently think that this imposition is good for Native people. This is, as Gorsuch rightly points out, grotesque paternalism. The majority describes the absence of state power as treating Indian victims of crimes committed by non-Indians “as second-class citizens.” But if Native people or tribes wanted this help, they would have asked states to step in long ago.

One of the most confusing aspects of the case is that the majority disregards the federal law regime that regulates criminal jurisdiction in Indian country and that includes a path for states to, with tribal consent, obtain precisely the criminal jurisdiction Oklahoma was asking for in this case. As Gorsuch correctly points out, the majority discusses the stakes of the case as if it were simply about ensuring that there is adequate personnel, not about state power. He writes, “If more sets of prosecutors are always better, why not allow Texas to enforce its laws in California?” The answer is obvious. Letting another sovereign’s laws into your territory is letting that sovereign rule over your lands and people. It is allowing that other sovereign to take over.

This case is also discussed by the majority and the media as a matter of having enough resources to secure public safety in Oklahoma. This became an issue in Oklahoma after the Supreme Court reshuffled which sovereigns were in charge of policing and prosecuting crimes after declaring much of the state  Indian country in 2020. However, the majority opinion’s ignorance and disregard for the context of decades of public safety concerns on Indian reservations outside the state of Oklahoma is inexcusable. The majority states that the issue in this case—the rules governing non-Indian criminal jurisdiction in Indian country—were “relatively insignificant in the real world” until recently. For a group that struggles with so much invisibility and erasure, this word choice is painful. And the statement itself is inaccurate. In fact, these rules have mattered a great deal for Native people living on Indian reservations.

For Native people, the chaos of overlapping sovereign authority and neglect has created a crisis where crime often goes unpunished by governments—state and federal—that do not adequately prioritize us. Reservation crimes are hard to prosecute. They occur in rural areas that are difficult to police, and navigating the complicated jurisdictional rules sucks up resources. I fear that expanding states’ role in the mix will only make things worse. Some tribes, states, and federal law enforcement will work together to handle these cases. But others will not. And now, states and the federal government will be able to scapegoat each other for their collective failure—all while the tribes are treated like second-class governments and told they are unable to step in.

It is even more jarring to reflect on how we got to this decision. Rather heartbreakingly, Castro-Huerta is a follow-up to a 2020 case, McGirt v. Oklahoma, which held that Congress never disestablished the boundaries of the Muscogee (Creek) Nation. The McGirt decision was a blockbuster Indian law case, because if Muscogee won its case, the Cherokee, Choctaw, Seminole, and Creek Nations had identical treaty promises and legal claims. Therefore, a win in McGirt would reinstate the eastern half of Oklahoma as part of reservations. It would have been an easy decision for the court if the stakes were not so high. In fact, when a very similar case came before the Supreme Court just a few years prior, it was an easy case. The court issued a unanimous opinion authored by Justice Clarence Thomas. But that case, Nebraska v. Pender, would change things for a town with 1,200 people in it—not half of Oklahoma.

As we waited for the decision in McGirt, many of us experts in Indian law expected the tribes to lose. Not because that was the legally correct outcome, but because Indian law tends to follow the same rules as a cowboy’s bullet in American westerns: It can bend and even go backward to make sure that the Indians always lose. In federal Indian law, we have been living under a political court for a long time. Chief Justice John Marshall’s frank declaration, “Conquest gives a title which the Courts of the conqueror cannot deny,” is an acknowledgement that, for Indians at least, the brute and violent force of politics can control the outcome more than the best legal argument.

And yet one morning in June 2020, the Indians won.

McGirt was a resounding victory for tribal governments. Gorsuch wrote an eloquent opinion filled with bold, quotable lines about the United States finally keeping its promises. Though there was a generally conservative majority on the Supreme Court, there were five votes on the court that were far more willing to rule in favor of tribes than any other Supreme Court in history. Finally, the courts would follow the law and honor the United States’ treaty promises—even if it meant sending half of the state of Oklahoma into legal confusion. The feeling of shock and joy throughout Indian Country was palpable.

After the McGirt decision, I wrote an essay that can be summarized as follows: “Wow, is this what it feels like to win when you’re supposed to? This is WILD! Does this mean the law is more than just empty promises for Indian people going forward? Someone peel me off the floor!” In truth, I had not realized just how deeply I had accepted that, because I was an Indian, I could never depend on the law. Nor had I realized just how horrifically unjust that acceptance was until I experienced the opposite the morning McGirt came down. I had a glorious few months dreaming about a new era of the American law having real meaning for Native people.

Then just two months after the decision, Justice Ruth Bader Ginsburg died. With one of McGirt’s five votes replaced by Amy Coney Barrett, Oklahoma ran back to the Supreme Court. Oklahoma asked the court to overrule McGirt and give control of the land back to Oklahoma. But if the court wasn’t willing to overturn a decision it had just issued, then Oklahoma wanted the Supreme Court to give it back, if not control of the land, at least the power it used to have over eastern Oklahoma, even if the reservations remained. In deciding to hear Castro-Huerta, the Supreme Court rejected the core challenge to the land boundaries at issue in McGirt, but took up a piece of the question of state power. And in doing so, the court dragged the federal government, every state, and every Indian tribe into a jurisdictional fight. Because the argument that Oklahoma made to win Castro-Huerta, and therefore its logic and its holding, applies to every state and every tribe in the nation.

It’s just two years later, and I feel like an Indian again. And after this Supreme Court term, I suspect a great deal of Americans now understand the feeling. Many of the legal protections we all used to count on feel like empty promises.

In the 2020 majority opinion in McGirt, Gorsuch wrote that despite the political pressure and normalized legal practice of treating Indians differently, for the Supreme Court to do anything other than uphold the law and the boundaries of these tribal governments “would be the rule of the strong, not the rule of law.” I fear Gorsuch’s words are now tragically prophetic. In his Castro-Huerta dissent, Gorsuch wrote that “where this Court once stood firm, today it wilts.”

I should not be so surprised that we fell so quickly back to the old status quo: the rule of the strong in the courts of the conqueror.

Correction: A quote that was misattributed to Justice Neil Gorsuch’s majority opinion in McGirt was changed to make clear that it was from his Castro-Huerta dissent.

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