Tribal Sovereignty Preempted

In June of 2022, the US Supreme Court held in Oklahoma v. Castro-Huerta that a state may prosecute a non-Indian for a crime committed against an Indian within Indian country. That decision effectively overruled Worcester v. Georgia, an 1832 landmark case in which Chief Justice Marshall said that state law “can have no force” in Indian country. Although the conventional wisdom about Castro-Huerta sees the case as a radical departure from first principles of federal Indian law, this article argues that Castro-Huerta is the natural—although deeply deplorable—next step in a long line of Supreme Court cases expanding state governmental authority within Indian country. Additionally, this line of cases mirrors a separate line restricting tribal governmental authority within Indian country. Through a critical examination and reinterpretation of these two decisional lines, this article demonstrates how the Supreme Court over the last half century has systematically privileged state interests and the interests of non-Indian individuals over tribal interests. In so doing, the Court has arrogated to itself the political function, formerly exercised only by Congress, of defining tribal sovereignty. This article concludes with a call for Congress to reject the Court’s relentless subordination of Indian interests to non-Indian interests and to reassert its role in defining and defending a robust conception of tribal sovereignty.