Gregory Ablavsky is a law professor and Elizabeth Hidalgo Reese is an assistant professor of law at Stanford Law School. In the midst of many important decisions by the Supreme Court in the last week of his term, the importance of Oklahoma v. Huerta Castle – a struggle for jurisdiction involving Indian detentions – can be overlooked. But its effects will go far beyond Oklahoma and its land disputes. Judgment 5 to 4, released on Wednesday, mitigates the effects of the 2020 court ruling McGirt v. Oklahoma, which reinforced that much of Oklahoma was, legally, a country of India, where many crimes were beyond the scope of the state and its laws. In its new sweeping ruling, the court reinstates part of the Oklahoma preliminary rulingMcGirth power in this territory by amending the law on bookings throughout the country. The court ruled on Wednesday all states have, as a matter of state sovereignty, the power to prosecute crimes that do not belong to India within the native lands. And in a bold assertion that goes beyond centuries of federal Indian law, Judge Brett M. Kavanaugh wrote about the majority: “The Indian state is part of the state, not separate from the state.” To put it bluntly, this decision is an act of conquest. And it could signal a radical change in Indian federal law, ushering in a new era governed by selective ignorance of history and respect for state power. The majority opinion describes the issue of state jurisdiction over crimes as “new” only after McGirth and further insists that “the exercise of state jurisdiction here would not infringe on tribal self-government.” Nothing could be further from the truth. This is not the first battle for state power in the Indian subcontinent. Indigenous peoples have long struggled desperately to prevent state intervention in tribal lands. In McGirth, Judge Neil M. Gorsuch eloquently begins, “At the end of the Trail of Tears was a promise.” To understand Huerta Castlewe have to see why the Trail of Tears happened from the beginning. In the 1830s, the southern states, including Georgia, wanted Indian land. They aggressively claimed jurisdiction over the native territory within their borders, so that they could exterminate the tribal communities. Seeking to expel non-Indian missionaries who assisted the Cherokee, Georgia committed a crime against any non-Indian being on Cherokee land without state permission. The Cherokee Nation challenged Georgia law and took its case to the Supreme Court. In Worcester v. Georgia, Chief Justice John Marshall ruled in 1832 that the Constitution gave the federal government the exclusive power to manage relations with indigenous nations. Georgia’s criminal laws, he argued, “have no effect” on Cherokee land because the Cherokee Nation remained a “nation” – “a separate community, holding its own territory” that, despite being part of the United States States, “so they do not cease to be sovereign and independent.” Georgia ignored the court, sold Cherokee lands and sent its militia. In desperation, some Cherokees signed a treaty agreeing to relocate to present-day Oklahoma, promising that their new territories would remain free of state control. Others refused, only to be forced to the point of the bayonet. Despite its brutal consequences and the consequent erosion on the margins, Worcester’s Tough occupation – that indigenous nations remain independent of states – has remained a good law, until now. The Huerta Castle the court continued from where Georgia stopped, arguing that “the Worcester-the understanding of the time of the Indian country as separate from the state was abandoned later in the 1800s. As scholars who have dedicated our lives to the study of this field of law, we are confused. When and how did this alleged abandonment occur? The majority is not based on understandings of the founding era or on cases of normal federal law in India, but on secondary assumptions and arguments of the late 19th century with foundations that were later annulled. This is not how originality works. The originality would be seen in the history of the founding era he supported Worcester. Like the traces of Gorsuch in his own Huerta Castle Disagreement, this framework emphasizes the importance of racial independence from state law to ensure peace in the early days of democracy. “Indeed,” Gorsuch wrote, “a more ahistorical and erroneous statement of Indian law would be difficult to understand.” Now, as in the 1830s, jurisdiction concerns power. The states then sought to control the Indian state not to protect the natives but to erode tribal sovereignty. Perhaps today, states choose not to use their recently delegated power to usurp tribal power in their territories. But there is good reason to doubt that. For example, last week there were scenarios in which tribes or the federal government could protect access to reproductive care in tribal lands. Now, after the overthrow of the Supreme Court Roe vs. Wadethere is nothing to prevent an surrounding state from entering tribal lands and expelling non-Indian doctors or women – no matter what the tribe has to say about it. We hope that much of this unnecessary broad opinion will be interpreted narrowly and carefully by future courts. But Huerta Castle is more than a litigation. It is, like the other cases decided in the last week of the court’s term, a radical overhaul of the current law that overrides its fundamental precedent – and could have profound consequences for indigenous peoples and their power.
