In 1886, the United States Supreme Court against Kagama describe states as the “deadliest enemies” of Indigenous nations. The case was about criminal jurisdiction over Indian reservations, but it also recognized the role played by states and their citizens in fueling Indigenous conflict and dispossession. This was a rare occasion when the court recognized that it was crafting Indian law against the backdrop of great violence and suffering.
Paradoxically, the court found that the very nation that waged wars of extermination and invasion against the indigenous peoples also declared itself their only guardian, protecting its “wards” from the “local malaise” of land-hungry whites. flooding native lands in the western states. . And where the US constitution lacked language defining federal authority over Indigenous nations, the court had invented it, for better or for worse.
This is why the court affirmed in Kagama, as it has done for nearly two centuries, that Indian country sat apart from the states and was instead subject to the authority of Congress and the federal government. Simply put, the states had no business in tribal affairs.
This ruling and others like it – flawed and steeped in conquest as they were – were meant to protect Indigenous peoples and their reservations from the arbitrary rule of hostile white states and settlers.
Last month, the Supreme Court tore up that decision and centuries of legal precedent with it. The Decision 5-4 in Oklahoma v Castro-Huerta found that state governments have the right to prosecute non-natives for crimes committed against tribal members on reservation land. The decision weakens the effects of McGirt vs. Oklahoma, which found that most of eastern Oklahoma was still legally Indian Country, where many crimes fell outside the reach of state law. But the court applied Castro-Huerta far beyond Oklahoma.
“A state has jurisdiction over all of its territory, including Indian Country,” Brett Kavanaugh wrote, relying on a bogus claim of the 10th Amendment, which does not allow states to intervene in tribal affairs.
His words could have come from the most ardent anti-Indian racist of a bygone era. The assertion of state criminal jurisdiction over indigenous lands has been the main tactic for the legal elimination of indigenous people. Chief Justice John Roberts’ court draws on a long tradition of violent conquest, dating back to Cherokee removal in the 19th century and termination policies of the 20th.
The theory of state supremacy, supposedly enshrined in the final amendment to the Bill of Rights, has a sordid history of white supremacy and reactionary politics. The same reasoning found its way into the Dredd Scott decision in 1859 to keep blacks as white property in slave states. More recently, Kavanaugh cited the 10th Amendment in his concurring opinion overruling Roe v Wade.
States, according to this extremist – and now dominant – view within the Court, have the power to abolish and criminalize abortions, potentially limit the right to vote, and now abrogate treaties and redefine federal relations with Indigenous nations.
Neil Gorsuch — who, like Kavanaugh, is a Trump appointee and a proponent of the revanchist legal theory known as “originalism” — wrote Castro-Huerta’s dissenting opinion. “Unknown to no one until today,” Gorsuch wrote sarcastically, “State law has applied from the beginning” to Indian Country. While scathing in his rebuke, Gorsuch oddly did not touch Kavanaugh’s flimsy 10th Amendment claim.
State jurisdiction may seem like a trivial matter. But the very foundations of Indian law were forged in a tumultuous, and often violent, struggle between states and tribes.
In 1832, the Cherokee Nation sought legal redress against the invasion of their homeland by white settlers from the state of Georgia. The Supreme Court ruled in their favor in Worcester v. Georgia, finding that states had no say in tribal affairs.
The decision was unequivocal in defining tribal sovereignty – the legal term for native subjugation to Congress rather than the states. Despite this protection, President Andrew Jackson did nothing to enforce it.
In 1838 troops armed with bayonets gathered Cherokee families at dinner, men in the fields and children playing. A “lawless mob” followed the soldiers to loot, pillage and burn – uprooting the Cherokee from the landscape and transporting them to present-day Oklahoma.
“I fought in the Civil War and saw men shot and slaughtered by the thousands, but kidnapping the Cherokee was the cruellest job I’ve ever known,” a Georgia volunteer said, more late Confederate Colonel, said.
Hatred of recalcitrant Indians, however, barely died down in the 20th century. A new push to end tribal sovereignty began at the end of World War II with politicians from western states with large Indian reservations calling for an end to the “Indian problem”.
Congress passed termination bills in 1953. Legislation immediately extinguished federal recognition of the Flathead, Klamath, Menominee, Potawatomi, and Turtle Mountain Chippewa tribes, opening their lands up for privatization. Another allowed states to assume criminal jurisdiction over Indian reservations. The results have been devastating and, in some cases, irreversible.
Termination, argued Lakota historian Edward Valandra, “legalized the overthrow of Indigenous governments, the theft of their lands, and the extermination of Indigenous peoples and cultures”.
In the 1960s, a militant Red Power movement advocating treaty rights and sovereignty gained ground in the northwest during the so-called “fish wars”, leading to violent and sometimes deadly clashes with fishermen whites and state game wardens. The Boldt decision of 1974 finally secured native fishing rights in the Pacific Northwest.
Indigenous movements weakened the layoff program. Today, Indigenous-led movements are the most divisive branch of the climate justice movement. Opening up Indigenous lands to more state intervention and jurisdiction is a reaction against the historic gains we have made as a people to protect our lands, our sovereignty and the future of this planet.
The Supreme Court decision in Castro-Huerta gave new life to the dismissal and is a harbinger for the next term of the court, when it will decide on the constitutionality of India’s Child Welfare Act in Brackeen vs. Haaland. The plaintiffs in this case use Tenth Amendment claims and Terminist arguments that Indigenous nations exist as entities based on race, not because of their treaty rights and inherent political sovereignty.
Conquest is the basis upon which the Supreme Court created law to dispossess and protect indigenous nations. And it’s time to move beyond the backward and paternalistic legal paradigm that allows nine unelected judges in Washington D.C. to decide the fate and validity of the original people of this land, who existed before the American constitution. and the very states that attempt to destroy us.