Surviving Castro-huerta: the Historical Perseverance of the Basic Policy of Worcester v. Georgia Protecting Tribal Autonomy, Notwithstanding One Supreme Court Opinion's Errant Narrative to the Contrary

• Publication year: 2023

Surviving Castro-Huerta: The Historical Perseverance of the Basic Policy of Worcester v. Georgia Protecting Tribal Autonomy, Notwithstanding One Supreme Court Opinion's Errant Narrative to the Contrary

John P. LaVelle

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Surviving Castro-Huerta: The Historical Perseverance of the Basic Policy of Worcester v. Georgia Protecting Tribal Autonomy, Notwithstanding One Supreme Court Opinion's Errant Narrative to the Contrary

John P. LaVelle^*

I. Introduction......................................................................................846

II. Oklahoma v. Castro-Huerta: Facts, Proceedings, and Divergent Majority and Dissenting Opinions.................................849

III. Castro-Huerta's Power Play: Forging a False Historical Narrative to Uproot Worcester and Expand State Authority in Indian Country.............................................................................851

A. Key Precedents Misrepresented and Misapplied.......................851

1. Worcester v. Georgia (1832)....................................................851
2. Organized Village of Kake v. Egan (1962)..............................857
3. New York ex rel. Cutler v. Dibble (1859).................................860

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B. Other Distortions and Omissions in Castro-Huerta's Efforts to Erase Tribal Autonomy from the History of Indian Law...............................................................................861

1. Earliest Post-Worcester State and Territorial Authority Cases Through 1880................................................861
2. United States v. McBratney (1881).........................................868
3. Utah & Northern Railway Co. v. Fisher (1885)......................871
4. United States v. Kagama (1886)..............................................873
5. Ward v. Race Horse (1896).......................................................884
6. Draper v. United States (1896)................................................886
7. Thomas v. Gay (1898), Wagoner v. Evans (1898), and Montana Catholic Missions v. Missoula County (1906).........891
8. Donnelly v. United States (1913).............................................898
9. United States v. Sandoval (1913)............................................919
10. Additional Early-Twentieth-Century State Authority Cases.....................................................................922
11. Williams v. Lee (1959) and the Continuing Policy of Worcester in Modern Indian Law......................................937

IV. Sowing Confusion, Reaping Chaos: Castro-Huerta's Derangement of the Indian Law Preemption Doctrine...................948

V. Conclusion..........................................................................................972

Appendix: Selected Exhibits from the Papers of Supreme Court Justices..................................................................976

I. Introduction

Oklahoma v. Castro-Huerta¹ is an unprecedented attack on the autonomy of Native American nations in the United States.² The supreme Court held that Oklahoma had jurisdiction over a crime committed by a non-Indian perpetrator against an Indian victim within the Cherokee Reservation's boundaries.³ The decision posits that states presumptively have jurisdiction, concurrent with the federal government, over crimes by non-Indians against Indians in Indian

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country.⁴ But this proposition is at war with a bedrock principle of Indian law, namely, that reservations are essentially "free from state jurisdiction and control," a policy that "is deeply rooted in the Nation's history."⁵ That principle has stood the test of time, with the high court itself guarding tribes' autonomy and sovereignty in celebrated Indian law cases dating to the nation's founding.⁶

Castro-Huerta drastically extends the reach of state authority into Indian country, and it does so by imposing a dubious, revisionist retelling of the history of U.S.-tribal relations. The false narrative forged by the majority reflects an extremist "states'-rights" ideology aggressively projected onto the field of Indian law,⁷ threatening to "wip[e] away centuries of tradition and practice"⁸ by uprooting a core historical principle protective of Indigenous rights. The decision provoked an immediate U.S. governmental response, with a House subcommittee holding hearings and the Justice and Interior Departments conducting listening sessions in September 2022 to begin assessing the case's dire implications.⁹ Scholarly criticism already is underway as well and likely

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will proliferate and intensify.¹⁰ With so much at stake for the preservation of tribal sovereignty and the future of federal Indian law, unmasking and deconstructing the decision will remain a pressing project for years to come.

This Article contributes to the project by examining the long line of historical Supreme Court precedents addressing state authority in Indian country to discern and explain their true significance. In addition, the Article casts light on a few important issues in Castro-Huerta from a unique source: the papers of individual Justices archived at the Library of Congress and various universities across the country.¹¹ A point of departure is Justice Neil Gorsuch's dissenting opinion in the case, a searing critique that delves incisively into many of the relevant precedents, exposing numerous flaws and fallacies in the majority's analysis and laying the groundwork for additional commentary and criticism.¹² Anchored in that foundation of principled critical assessment, this Article endeavors to help fill in some of the serious gaps and omissions in the majority's treatment of state authority in Indian country while periodically referencing the "Indian Law Justice Files"¹³ to further illuminate the case's alarming distortions of history and precedent.

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II. Oklahoma v. Castro-Huerta: Facts, Proceedings, and Divergent Majority and Dissenting Opinions

The basic facts of Castro-Huerta are both tragic and easily stated. A non-Indian defendant was convicted in Oklahoma's courts of seriously abusing his stepdaughter, a Cherokee citizen.¹⁴ The defendant, Victor Manuel Castro-Huerta, appealed the conviction to the Oklahoma Court of Criminal Appeals after the U.S. Supreme Court in McGirt v. Oklahoma made clear that the Cherokee Reservation continues to exist, placing the location of the crime within the reservation's boundaries.¹⁵ Accordingly, the state appellate court ruled that Oklahoma lacked criminal jurisdiction pursuant to basic principles of Indian law that prescribe exclusive federal jurisdiction for crimes committed by non-Indians against Indians within Indian country.¹⁶

By a 5 to 4 vote the U.S. Supreme Court reversed, holding that federal law did not preclude Oklahoma's criminal jurisdiction and that the state's conviction of Castro-Huerta therefore was valid.¹⁷ Justice Brett Kavanaugh's majority opinion dismissed as mere dicta statements from numerous previous Supreme Court decisions reiterating that states lack jurisdiction over crimes against Indians in Indian country absent a

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congressional statute conferring such authority.¹⁸ Instead, Kavanaugh opined, neither the General Crimes Act¹⁹ nor Public Law 280²⁰ preempted the state's jurisdiction.²¹ Moreover, Kavanaugh continued, state jurisdiction over all crimes committed by non-Indians within reservations had become the default rule during the nineteenth century, supplanting the baseline preclusion of state law and jurisdiction established by the 1832 foundational Indian law case Worcester v. Georgia.²² Finally, purporting to apply the Indian law preemption precedent White Mountain Apache Tribe v. Bracker,²³ the Court concluded: " . . . Bracker does not bar the State from prosecuting crimes committed by non-Indians against Indians in Indian country. . . . [T]he exercise of state jurisdiction here would not infringe on tribal self-government."²⁴

In dissent Justice Neil Gorsuch denounced the Castro-Huerta majority decision as an "ahistorical and mistaken statement of Indian law" that "allows Oklahoma to intrude on a feature of tribal sovereignty recognized since the founding" and that "surely marks an embarrassing new entry into the anticanon of Indian law."²⁵ Gorsuch observed that the majority's analysis defied "a foundational rule" dating back two centuries and firmly established by Worcester, namely, that "Native American Tribes retain their sovereignty unless and until Congress ordains otherwise."²⁶

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The dissent faulted the preemption analysis the majority used to evaluate the significance of the General Crimes Act and Public Law 280, noting that by virtue of the Worcester-derived foundational principle "the preemption rule applicable to [tribes] is exactly the opposite of the normal rule" and, accordingly, "[t]ribal sovereignty means that the criminal laws of the States 'can have no force' on tribal members" absent federal statutory authorization.²⁷ Finally, Justice Gorsuch decried as "mistaken root and branch" the Castro-Huerta majority's presuming to use the Bracker state-taxation precedent "to 'balance' away tribal sovereignty in favor of state criminal jurisdiction over crimes by or against tribal members."²⁸ "[T]he Court's balancing-test game is not one we should be playing in this case," Gorsuch wrote, adding: "This Court has no business usurping congressional decisions about the appropriate balance between federal, tribal, and state interests."²⁹

III. Castro-Huerta's Power Play: Forging a False Historical Narrative to Uproot Worcester and Expand State Authority in Indian Country

A. Key Precedents Misrepresented and Misapplied

1. Worcester v. Georgia (1832)

Central to Castro-Huerta's allowing state jurisdiction over crimes committed by non-Indians against Indians is the majority's denial that Worcester v. Georgia³⁰ is a foundational precedent whose "basic policy" restricting state authority in Indian country "has remained."³¹...