“Could Alabama, if denied the right to legislate co-extensive with her limits, be said to be sovereign? Can she be considered sovereign, when the operation of her laws, although she wills it otherwise, is confined to particular districts and sections of the State?”
— Alabama House of Representatives Committee on Indians and Indian Affairs (1831).
“Indian country is part of the State, not separate from the State. . . . [A]s a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.”
— Oklahoma v. Castro-Huerta (2022).
INTRODUCTION
Almost two centuries separate the statements above, yet both address the same issue: a state’s authority to exercise its jurisdiction over Cherokee Nation territory lying within the state’s borders.
In 1830, the Alabama legislature was frustrated with the Cherokee Nation,
which held title to a substantial portion of the lands within the state and had erected a constitutional government.
Competing with other polities within its own limits and unable to exercise jurisdiction over the whole of its claimed territory, Alabama questioned whether it could be considered truly sovereign.
In 2022, the Cherokee Nation’s territory—now in Oklahoma following the Trail of Tears—was at issue once again. In Oklahoma v. Castro-Huerta, the Supreme Court considered whether Oklahoma could exercise criminal jurisdiction over non-Indians who committed crimes against Indians
within the Cherokee Nation Reservation, which stretches across fourteen counties and includes the city of Tulsa.
In 2020, McGirt v. Oklahoma recognized that portions of eastern Oklahoma remained Indian Country, precluding state jurisdiction over certain crimes.
Enraged by this decision, Oklahoma appealed to the Court to restore its authority, characterizing McGirt’s effect on its criminal justice and civil regulatory systems as “calamitous.”
Like Alabama, Oklahoma worried about its status, claiming that “the fundamental sovereignty of an American State is at stake.”
Despite the different times and different circumstances, Alabama’s and Oklahoma’s appeals were strikingly similar: They relied on strong notions of state sovereignty. Both communicated their beliefs in a concept of absolute territorial jurisdiction in which sovereigns exercise their authority over all their claimed territory and the peoples who reside on it.
Without this ability, they claimed their status as sovereigns was no longer secure. Furthermore, the two states pointed to the same culprit undermining their jurisdiction: Native sovereignty. Tribal power, they argued, threatened state power by prohibiting jurisdiction over Native lands and Native peoples physically within state borders.
Alabama and Oklahoma used state sovereignty rhetoric as a response to this threat, hoping to gain public support and federal protection for the maintenance of state supremacy.
Yet, other than the times in which they were articulated, there is one major difference between the states’ arguments: their status as law. In the 1830s, politicians from Alabama and other southern states made arguments based on state sovereignty to justify legally eradicating Native nations in their push for Indian Removal. But the U.S. Supreme Court rejected the southern states’ theory wholesale in Worcester v. Georgia,
“[t]he foundational case in federal Indian law.”
Chief Justice John Marshall held that state law “can have no force” within the territories of Native nations because the Constitution gave the federal government authority over Indian affairs and recognized the independence of Native nations.
But in 2022, the Supreme Court took the states’ rejected arguments from two centuries earlier and made them law. In Castro-Huerta, the Court proclaimed that states have jurisdiction over their entire territories notwithstanding the presence of Native nations.
Finding no federal law preempting state authority, the Court held that states possess the ability to exercise jurisdiction over non-Indian-on-Indian crimes within Indian Country.
In the span of a few sentences, Castro-Huerta upended foundational principles of Indian law by endorsing the very theory of state supremacy the Court’s predecessors had rebuffed.
And it did so without recognizing the roots of the state supremacy arguments it sanctioned.
As many Indian law scholars have pointed out, the Castro-Huerta decision is a fundamentally flawed one.
The majority ignored history, precedent, and the current direction of Indian affairs policy to reach its result.
In his dissent, Justice Neil Gorsuch labeled the case “an embarrassing new entry into the anticanon of Indian law” and derided the majority: “Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.”
As this Article contends, however, the Castro-Huerta decision did not happen overnight. Similarities between recent arguments in the Court and Alabama’s Removal-era appeal are not a mere coincidence. Rather, they are part of a larger historical phenomenon in legal controversies over tribal sovereignty. For Indian affairs has long been the site of jurisdictional conflict between the federal and state governments and Native nations, or, in the words of nineteenth-century Georgia legislators, the site of “collisions of rival sovereignty.”
And as part of these conflicts over the past two centuries, states and jurists have responded to Native nations’ assertions of sovereignty with a collection of arguments—all based on the notion that states are the only legitimate and constitutionally grounded sovereigns within their territory—that seek to delegitimize the existence and exercise of tribal power.
This theory of state supremacy—this Article’s term for the ideology from which these arguments emanate—comprises three tenets: (1) State territorial jurisdiction is absolute; (2) tribal sovereignty is nonexistent; and (3) federal power is a limited yet valuable asset for upholding state authority against internal threats, namely tribal power. And from the Removal Era to the present day, states have continually sought to use arguments deriving from these tenets to establish their supremacy over Native nations.
But these arguments are not just abstract articulations of jurisdiction or the implementation of historical ideas regarding federalism. At its core, the theory of state supremacy was a results-oriented logic for Native deportation.
In the 1820s and 1830s, a cadre of elite, southern, Euro-American politicians constructed the state supremacy theory to appease the voracious land hunger of their settler constituents.
This “legal ideology of removal”
sought to nullify federal law that protected Native nations and justify the Euro-American invasion and appropriation of Native lands. As several U.S. senators put it, state laws supported by this ideology would force Native peoples either to submit to conquest by “being incorporated into the body politic” or to “be speedily induced to remove to the west of the Mississippi.”
The subjugation of Native peoples was not the state supremacy theory’s only goal; the theory also sought to perpetuate the subjugation of Black people. Afraid that federal power over Native peoples would lead to the abolition of slavery, Alabama legislators claimed: “If [Congress] can say to the state of Alabama, that Indians cannot be citizens, it can by a similar exercise of municipal power within its limits, say that Negroes shall not be slaves.”
Worse, the southerners’ arguments were ultimately successful. Even though the Supreme Court rejected the state supremacy theory, southern state courts, President Andrew Jackson, and Congress endorsed it.
This multipronged legal assault—combined with settler violence and military force—led to Native nations’ expulsion from their homelands to Indian Territory and the loss of thousands of lives on the Trail of Tears.
And on the Native nations’ former lands, southerners built their Cotton Kingdom and initiated the forced migration of one million enslaved Black people to their plantations.
Fundamentally, the state supremacy theory served the ends of settler colonialism, erasing Native presence for the benefit of Euro-American conquest and racial hierarchy.
But the continued use of the state supremacy arguments ignores their problematic origins in the Removal Era. The Court and states frame the arguments as abstract and race-neutral principles of federalism when they are anything but. In fact, the Removal-era state supremacy theory is another instance of federalism—specifically state sovereignty—being weaponized to further oppress marginalized communities.
Although nullification, secession, and other states’ rights positions have been rejected for their racist origins and constitutional infirmities, state supremacy arguments in federal Indian law cases remain in use. Unlike their rejected counterparts, these arguments are accepted as viable legal positions and have been used time and time again.
And with the Castro-Huerta decision, the Court has taken a theory birthed in the colonialism, greed, and violence of the nineteenth century and made it law in the twenty-first century. Now more than ever, it is time to bury the state supremacy arguments with the past.
But doing so must start with the past. Historians have written about the longstanding hostility between Native nations and states.
Southern Indian Removal—with its aggressive state officials and courts, constitutional debates, and the famed Cherokee cases—has garnered a large share of attention in Native history,
legal history,
and American constitutional history.
And historians of federalism have begun to focus on how states in the early republic continually appealed to the Constitution and the federal government to rid themselves of competing sovereigns, including Native nations.
Building on these histories, this Article’s first aim is descriptive. It provides a historical narrative of the development of the state supremacy theory, returning to the progenitors of this theory—Removal-era southern state legislatures—to describe the theory’s legal and rhetorical features. And it constructs this narrative by relying on rarely utilized archival sources, namely reports written by southern U.S. senators and state legislators that first justified the extension of state law over Native peoples and lands as a means of erasing tribal power. The Article then explores how the theory has continued to influence Indian law cases from the late nineteenth century to the present.
In brief, the narrative goes like this: Rooted in state hostility from the Founding Era, states’ arguments for authority over Indian affairs first coalesced into a comprehensive legal and rhetorical onslaught in the early nineteenth century. In the 1820s and 1830s, Euro-American politicians in the South constructed a novel theory of state supremacy to justify southern state laws that sought to eliminate Native nations within their borders legally and physically.
Although the U.S. Supreme Court rejected the southern states’ arguments in the 1832 case of Worcester v. Georgia,
the states emerged victorious when the federal government forcibly removed the Cherokee, Choctaw, Chickasaw, Muscogee (Creek),
and Seminole Nations from the South to Indian Territory.
As if the dispossession and death accompanying Removal were not enough of a blow to tribal power, the southern state supremacy theory endured in the field of federal Indian law. In the late nineteenth century, the Court utilized state supremacy arguments to assist in the assimilation of Native peoples and lands into the United States.
And in the late twentieth and early twenty-first centuries, Native power’s resurgence prompted both Justices and state litigants to revive the arguments to undermine tribal sovereignty.
As this history shows, the legacy of Indian Removal continues to impact the progress of Native nations.
The second aim of this Article is to provide a new analytical approach to federal Indian law. Indian law scholars have made forceful arguments about how the Doctrine of Discovery, racism, and outdated stereotypes concerning Native peoples have shaped Indian law cases since the beginning of the field.
Others have taken a more time-bound approach, studying possible explanations for the Rehnquist and Roberts Courts’ overwhelming opposition to tribal interests and solicitude for states.
Viewing Indian law cases through the lens of state supremacy offers a new perspective: The state supremacy theory has served as a consistent throughline in the field of federal Indian law. First, the theory explains why Indian law cases have historically used the expansion of state authority as an opportunity to curb tribal power. Second, focusing on the theory reveals a disturbing trend whereby these supremacy arguments from the Removal Era—arguments that are constitutionally infirm, historically inaccurate, and racist—are gaining widespread acceptance among Justices and states. Third, the perpetuation of Removal-era state supremacy arguments in recent Indian law cases uncovers how tied members of the current Court are to a view that state and tribal jurisdictional conflicts are zero-sum games and that states—as opposed to tribes—are the legitimate constitutional sovereigns.
And this view contradicts both the original understanding of Indian affairs authority and the Native nations’ constitutional status.
This particular view of states and tribes adds to Indian law scholars’ analysis of the Court’s “subjectivist approach” to Indian law cases.
According to these scholars, the Rehnquist and Roberts Courts have ignored foundational Indian law principles in favor of a subjectivist approach that “gauges tribal sovereignty as a function of changing conditions—demographic, social, political, and economic—and the expectations they create in the mind of affected non-Indians.”
As this Article suggests, the Justices utilize state supremacy arguments in their reasoning to provide both historical and legal justifications for their preferred pro-state-sovereignty outcomes.
Even if, as the scholars argue, the Court uses late nineteenth-century allotment policy as the “touchstone” for determining the scope of tribal power in its subjectivist approach,
the state supremacy theory indicates that the Court reaches even further back for the incorrect legal principles it deploys to uphold state interests over tribal ones. Thus, we may need to add the Court’s reliance on the state supremacy theory to the “rules of judicial subjectivism” going forward.
This Article’s historical narrative and analytical approach stemming from the state supremacy arguments also break new ground in emphasizing the roles that states have played in the development of federal Indian law. In scholarship focused on Native nations and peoples, legal scholars have almost exclusively focused on the federal
and Indian (or tribal)
aspects of federal Indian law. This tendency has obscured the huge influence that states and their arguments have had on current understandings of Native history and the principles of federal Indian law, even when some of the most important Indian law cases pitted a state against a Native nation.
Analysis of states and their authority has usually only appeared in scholarship that compares the political statuses of states and Native nations
or that explores how states and tribes should work with one another in certain policy areas.
By bringing more attention to state supremacy, especially in the wake of Castro-Huerta, this Article hopefully will spur other scholars in the field to consider it alongside federal power and tribal sovereignty in their analyses.
This work on the state supremacy theory has implications for broader federalism issues beyond Indian law. In particular, the revival of state supremacy arguments in the modern Indian law cases suggests that the Rehnquist and Roberts Courts’ formalist approach to federalism has been influenced by the history of Indian law.
The Court’s “New Federalism,” which purports to be a return to the original understanding of federalism, involves the resurrection of general ideas about federal, state, and tribal sovereignty that did not hold sway in the early republic and should not today.
Furthermore, the recent Indian law cases invoking state supremacy tropes to cabin tribal power reinforce the trend whereby the Court uses dubious constructions of state sovereignty to undermine racial remediation policies.
Therefore, Indian law may not be the only doctrinal area in which robust-yet-inaccurate notions of state power must be confronted. And this analysis of the state supremacy theory will help jurists and legal scholars who work outside the field of federal Indian law to recognize the larger phenomenon of the Court using states’ rights arguments shorn of their historical foundations to upset various doctrines.
Still, the overarching purpose of this Article is to undermine the use of state supremacy arguments in federal Indian law cases before the Supreme Court. In tracing the construction of the state supremacy theory by southern state officials in the 1820s and 1830s, it uncovers the flawed reasoning, racist undertones, and goals of legal and cultural elimination that underlay state supremacy arguments.
It argues that these enduring arguments not only pose a threat to legitimate sovereigns—Native nations—but also contradict the original understanding of constitutional and Indian law jurisprudence, defying the very first Indian law opinions written by Chief Justice John Marshall.
Furthermore, this Article contends that nothing—not history, changes in Indian affairs policy, or Supreme Court precedents—has made the state supremacy theory legally or morally sound in the interim. Rather, the theory’s continued use actually defies constitutional law and federal Indian affairs policy, produces an inaccurate history of Native nations and federal Indian law, and perpetuates the racism and violence that characterized the Removal Era.
If Indian Removal is not just the deportation of Native nations and peoples from their homelands but a legal assault on tribal sovereignty, it continues to haunt federal Indian law to this day. Just as the southern states used state law and the theory of state supremacy to legally eradicate Native nations within their borders in the Removal Era, now some states and Justices are seeking to constitutionalize state supremacy to do so once again. And they are using Removal-era arguments marred by colonialism, racial prejudice, and violence. The Court’s endorsement of the rejected and flawed state supremacy theory should not go unchallenged at a time when the Court has called for invalidating laws based on racism and colonialism.
Advocates, jurists, and legal scholars must counter the Court’s and states’ use of these Removal-era holdovers. This Article will prepare them to do so.
This Article proceeds in four parts. Part I provides a brief history of the relationship between state authority and Indian affairs in the Founding and Removal Eras, describing the development of the Indian affairs legal regime that southern states challenged in the early nineteenth century. Part II uncovers the creation of the southern states’ theory of state supremacy, which arose as they sought to extend state law over Native nations and eradicate tribal power. It identifies the legal bases and rhetorical themes of the state supremacy arguments. The Part also describes the rejection of these arguments in the foundational Indian law case of Worcester v. Georgia.
Part III turns to the persistence of the state supremacy arguments in the late nineteenth century and then to their revival in the early twenty-first century. It uncovers examples of Justices appropriating these arguments against tribal interests as well as states invoking them as parties to recent Indian law cases before the Court. Part IV argues that the theory of state supremacy now reigns victorious in Indian law with the Court’s decision in Castro-Huerta.
It analyzes the various ways the Castro-Huerta majority relied on Removal-era arguments. It also points to the overarching problems in the Court’s and state litigants’ use of state supremacy arguments in the present day. As the Part illustrates, the constitutional, historical, and racial bases for the state supremacy theory render the theory illegitimate. The Part concludes by considering the potential impacts of Castro-Huerta on federal Indian law doctrine.