The U.S. Supreme Court hears arguments tomorrow (April 27) in Oklahoma v. Castro-Huerta, an important successor case to McGirt that has the potential to substantially remake criminal jurisdiction in Indian country. Oklahoma is arguing—at odds with current practice and long-standing assumptions—that the state, as well as the federal government, may prosecute crimes committed by non-Indians against Indians.
In advancing this argument, Oklahoma offers a novel reimagining of the nineteenth-century history of federal Indian law. Early on, it acknowledges, the federal government imagined a “territorial separation” between states and Native territory, even if Native land was formally included within state boundaries—a view written into the 1834 version of the Trade and Intercourse Act. But, it argues, in the late nineteenth century Congress abandoned this principle of territorial separation and then endorsed state jurisdiction over Indian country through a series of cases rooted in the equal footing doctrine.
Oklahoma’s argument fundamentally misunderstands what happened in the nineteenth century when federal, tribal, and state sovereignties collided. In fact, Oklahoma has it backward. Late nineteenth-century federal law did not repudiate territorial separation; it actually came to embrace it. But it did so on an expanded foundation of federal authority and preemption of state authority.
As I have explored much more fully elsewhere, the fundamental jurisprudential dilemma of the early nineteenth century was that Native and state sovereignty appeared zero sum: they could not coexist in the same territory. States like Georgia embraced what Oklahoma calls the “baseline principle” that state sovereignty “is coextensive with its territory” to attack tribal sovereignty, even attempting to legislate it out of existence. The U.S. Supreme Court repudiated that position in Worcester v. Georgia, but the executive aggressively endorsed it, resulting in the Trail of Tears. The justification for this violent ethnic cleansing—euphemized as Removal—was that it would solve the collision by moving tribal sovereignty out of state sovereignty. Oklahoma notes that the 1834 Trade and Intercourse Act partly codified this understanding by placing most Indian country outside of states (though they apparently missed Section 29 of the law preserving the 1802 statute’s provisions for Indian tribes east of the Mississippi, substantially undercutting their argument: see Act of June 30, 1834, ch. 161, 4 Stat. 729, 734).
The problem, predictably, was that this effort to solve the collision of sovereignties by mapping “territorial separation” onto the division between states and federal territories failed—as the very existence of Oklahoma demonstrates. White settlers poured westward and came up with some very creative legal arguments to try to avoid the strictures of federal law and continue to assert jurisdiction over Indian country. But perhaps the most common was that, as former western territories became states in the late nineteenth century, they had the right, under equal footing, to have sovereignty over their entire territory—including Indian country.
This was not a new argument: as I show in my recent book, this equal footing argument had been deployed as early as the 1790s by the likes of Andrew Jackson when Tennessee became a state. But it repeatedly lost, probably because it didn’t make much sense. After all, Georgia was one of the original states, and the Supreme Court had ruled that it lacked jurisdiction in Indian country. But then, all of sudden, in 1881, the Court in McBratney accepted this argument for the limited category of non-Indian-on-non-Indian crime.
Why? Oklahoma unwittingly provides the answer in its brief when it notes the era’s shifting ideas of the sources of federal power. As I have explored much more fully in a symposium piece, there was considerable blurring at the time between various ideas of sources for federal authority over Indian affairs, including multiple different meanings of federal power over the territories. At the time of McBratney, the leading case enunciating federal power over Indian affairs—cited in the decision–had made precisely this connection with the territories. Because of this conflation, it was plausible (though still legally thin) to assume that, when federal territorial power disappeared, federal power over Indians receded, too.
Yet Kagama, in 1885, changed that. The decision upheld the Major Crimes Act, which created federal jurisdiction over Indian-on-Indian crime in Indian country. The case is usually interpreted, correctly, as enunciating federal plenary power over Indians and Indian country. But the case is perhaps just as significant as a federalism case. Much of the Court opinion was devoted to explaining why the exercise of federal authority within state borders was nonetheless constitutionally valid.
What followed, then, was a brief and strange juxtaposition of old and new doctrines. The Court endorsed equal footing arguments in two more Indian affairs cases. But then, as principles of federal supremacy gained increasing ascendency, the Court, citing Kagama, repudiated such arguments—again, and again, and again. In other words, the Court solved the problem of the collision of tribal and state sovereignty by embracing federal power over both. During this period, the principle of “territorial separation” returned–but this time through federal supremacy over Indian affairs, including within state borders, and the preemption of state law rather than under some of the older jurisprudential concepts.
This approach largely remains current law. As for the old equal footing argument, whatever force it once had surely vanished in 1999, when the Supreme Court disregarded one of those nineteenth-century cases because the equal footing argument rested on a “false premise.”
Oklahoma’s reading of legal history is thus strange indeed. It is not originalist: indeed, it explicitly seeks to repudiate the understanding of “territorial separation” that the state acknowledges operated at the Founding as well as at the time that the statute in question was adopted. But it is not really grounded in current doctrine, either, especially since the states have neither claimed nor exercised the jurisdiction Oklahoma now asserts. And, as I’ve indicated, it’s not really based in a fair reading of nineteenth-century jurisprudence either.
Really, what Oklahoma seems to want the U.S. Supreme Court to do is to revive the spirit, though not the letter, of some late nineteenth-century federal law. The Court should go back and finish the job, Oklahoma suggests, by privileging states and suppressing tribes.
Greg Ablavsky is a professor of law the Helen L. Crocker Faculty Scholar at Stanford Law School. His scholarship focuses on early American legal history, particularly on issues of sovereignty, territory, and property in the early American West. His book Federal Ground: Governing Property and Violence in the First U.S. Territories was published in 2021 by Oxford University Press. His work has received the Cromwell Article Prize and the Kathryn T. Preyer Prize from the American Society for Legal History.