Federal Indian Law

“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).[footnote]H.R. Journal, 12th Sess., at 93 (Ala. 1831).[/footnote] “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).[footnote]142 S. Ct. 2486, 2493 (2022).[/footnote] 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.[footnote]As discussed in more detail throughout this Article, the experience of the Cherokee Nation parallels that of the Chickasaw, Choctaw, Muscogee (Creek), and Seminole Nations, which are collectively known as the “Five Civilized Tribes.” Grant Foreman, The Five Civilized Tribes: Cherokee, Chickasaw, Choctaw, Creek, Seminole, at vii (1934). These Native nations, whose original homelands comprise the current southeastern United States and who were removed to Indian Territory (present-day Oklahoma) in the 1830s and 1840s, are designated as “civilized” because of their early acceptance of Christianity and Anglo-American forms of agriculture, education, political institutions, and dress. See id. (stating that the name resulted from those tribes’ “progress and achievements”). Because of the paternalistic nature of the “civilized” label, I have chosen to use the term “Five Tribes” when referring to these nations as a group. For a recent history of the nations’ experience of the United States’ “civilization” programs and Indian Removal, see generally Claudio Saunt, Unworthy Republic: The Dispossession of Native Americans and the Road to Indian Territory (2020).[/footnote] In 1830, the Alabama legislature was frustrated with the Cherokee Nation,[footnote]In 1830, the Alabama legislature—following the example of Georgia and Mississippi—considered a bill to extend state law over Native lands and peoples within the state’s borders to induce the Native nations to cede their lands and remove west of the Mississippi River. Ala. H.R. Journal, 12th Sess., at 14, 118; see also Act of Dec. 19, 1829, 1829 Ga. Laws 98; Act of Jan. 19, 1830, ch. 1, 1830 Miss. Laws 5. The bill was referred to the House Committee on Indians and Indian Affairs, which produced a report justifying Alabama’s authority to exercise such jurisdiction based on history, the U.S. Constitution and treaties, and other states’ laws. Ala. H.R. Journal, 12th Sess., at 27, 92–96. In supporting Alabama’s jurisdictional rights, the report denigrated Cherokee sovereignty over its territory, referring to the Cherokee as “a conquered people.” Id. at 95. The proposed bill failed, id. at 257, but the Alabama legislature eventually succeeded in passing a state law extension act in 1832. See Act of Jan. 16, 1832, 1831–1832 Ala. Laws 7. For more details on this history and the justifications in the Committee on Indians and Indian Affairs report, see infra sections I.B, II.A.[/footnote] which held title to a substantial portion of the lands within the state and had erected a constitutional government.[footnote]See William G. McLoughlin, Cherokee Renascence in the New Republic 388–401 (1986) (studying the development and content of the Cherokee Constitution of 1827); Saunt, supra note 3, at 37–38 (describing the extent of Cherokee lands within southern states).[/footnote] 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.[footnote]See Ala. H.R. Journal, 12th Sess., at 92–93 (“The question under consideration presents, first, the vexata quaestio whether Alabama is a sovereign State.”); id. at 93 (“[E]ither Alabama or the Cherokees must give up their pretentions to govern; otherwise we shall exhibit . . . the novel spectacle of two sovereigns . . . making laws for the government of the same people, at the same time; . . . a state of things that never has or can exist.”).[/footnote] 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[footnote]This Article uses the terms “Native” and “Indian” to describe the Indigenous peoples of the United States. The term “Indian” is used in its historical context and as part of key terms of art like “Indian affairs” and “Indian Country.” See Michael Yellow Bird, What We Want to Be Called: Indigenous Peoples’ Perspectives on Racial and Ethnic Identity Labels, Am. Indian Q., Spring 1999, at 1, 7–11.[/footnote] within the Cherokee Nation Reservation, which stretches across fourteen counties and includes the city of Tulsa.[footnote]Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2491–92 (2022). For a description of the Cherokee Reservation, see Maps, Cherokee Nation, https://www.cherokee.org/about-the-nation/maps/ [https://perma.cc/89VE-YXT2] (last visited July 31, 2023).[/footnote] In 2020, McGirt v. Oklahoma recognized that portions of eastern Oklahoma remained Indian Country, precluding state jurisdiction over certain crimes.[footnote]140 S. Ct. 2452, 2459 (2020).[/footnote] 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.”[footnote]Petition for a Writ of Certiorari at 3, Castro-Huerta , 142 S. Ct. 2486 (No. 21-429), 2021 WL 4296002.[/footnote] Like Alabama, Oklahoma worried about its status, claiming that “the fundamental sovereignty of an American State is at stake.”[footnote]Id.[/footnote] 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.[footnote]For background on territorial sovereignty and its rise, see generally Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788-1836 (2010) (studying the early nineteenth-century relationship between white settlers’ claims of territorial sovereignty and the exercise of criminal jurisdiction over Indigenous peoples in Georgia and New South Wales); Charles S. Maier, Once Within Borders: Territories of Power, Wealth, and Belonging Since 1500 (2016) (charting the development of modern territoriality and its connection to ideas of sovereignty). For more discussion of this concept as used by the southern states in the Removal Era, see infra section II.A.4.[/footnote] 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.[footnote]See infra section I.B (discussing the conflict over jurisdiction).[/footnote] 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 ,[footnote]See 31 U.S. (6 Pet.) 515, 561 (1832) (“The whole intercourse between the United States and [the Cherokee] nation, is, by our constitution and laws, vested in the government of the United States. The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity.”).[/footnote] “[t]he foundational case in federal Indian law.”[footnote]Sidney L. Harring, Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century 25 (1994).[/footnote] 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.[footnote] Worcester , 31 U.S. (6 Pet.) at 561.[/footnote] 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.[footnote]Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2493 (2022).[/footnote] 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.[footnote]Id. at 2491, 2494–501.[/footnote] 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.[footnote]Id. at 2504 (“To be clear, the Court today holds that Indian country within a State’s territory is part of a State, not separate from a State. Therefore, a State has jurisdiction to prosecute crimes committed in Indian country unless state jurisdiction is preempted.”).[/footnote] 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.[footnote]See, e.g., Gregory Ablavsky, Too Much History: Castro-Huerta and the Problem of Change in Indian Law, 2023 Sup. Ct. Rev. 293, 313–20, 344–50 [hereinafter Ablavsky, Too Much History] (arguing that the Castro-Huerta decision exemplified “bad history” in Indian law); Dylan R. Hedden-Nicely, The Reports of My Death Are Greatly Exaggerated: The Continued Vitality of Worcester v. Georgia , 52 Sw. L. Rev. 255, 259 (2023) [hereinafter Hedden-Nicely, The Reports of My Death] (arguing that if “taken out of context,” Castro-Huerta “could be read as a total abrogation of Worcester ”); Gregory Ablavsky & Elizabeth Hidalgo Reese, Opinion, The Supreme Court Strikes Again—This Time at Tribal Sovereignty, Wash. Post ( July 1, 2022), https://www.washingtonpost.com/opinions/2022/07/01/castro-huerta-oklahoma-supreme-court-tribal-sovereignty/ (on file with the Columbia Law Review) (pointing out that Castro-Huerta relies on “cherry-picked ancillary cases and late-19th-century arguments with subsequently overruled foundations”); Elizabeth Hidalgo Reese, Conquest in the Courts, The Nation ( July 6, 2022), https://www.thenation.com/article/society/supreme-court-castro-huerta/ (on file with the Columbia Law Review ) (“The opinion is unmoored from the key cases of federal Indian law and divorced from the realities of American history.”); Nick Martin, The Supreme Court’s Attack on Tribal Sovereignty, Explained, High Country News ( July 1, 2022), https://www.hcn.org/articles/indigenous-affairs-justice-law-the-supreme-courts-attack-on-tribal-sovereignty-explained (on file with the Columbia Law Review ) (stating that Castro-Huerta “breaks with centuries of established federal Indian law”).[/footnote] The majority ignored history, precedent, and the current direction of Indian affairs policy to reach its result.[footnote]See infra Part IV.[/footnote] 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.”[footnote] Castro-Huerta , 142 S. Ct. at 2511, 2521 (Gorsuch, J., dissenting).[/footnote] 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.”[footnote]Resolution of Dec. 18, 1829, 1829 Ga. Laws 267, 270.[/footnote] 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.[footnote]See infra Part II and sections III.A–.B.[/footnote] 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.[footnote]For a discussion of Indian Removal as a form of “deportation,” see K-Sue Park, Self-Deportation Nation, 132 Harv. L. Rev. 1878, 1884–85, 1898–904 (2019). Although several scholars have recently, and convincingly, argued that “removal” was a capacious term in the early republic and served as euphemism for “expulsion,” “deportation,” and “genocide,” this Article continues to use the term to reflect the language used at the time. See Jeffrey Ostler, Surviving Genocide: Native Nations and the United States From the American Revolution to Bleeding Kansas 6–7, 365–68 (2019) (debating whether Removal qualifies as “genocide” or “ethnic cleasning”); Saunt, supra note 3, at xiii–xiv (noting that “‘Removal’ is . . . unfitting for a story about the state-sponsored expulsion of eighty thousand people”); Samantha Seeley, Race, Removal, and the Right to Remain 7–8 (2021) (describing how the multiple meanings of “removal” helped to “hid[e] its devastation” and occlude its true impact).[/footnote] 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.[footnote]For a more detailed explanation of the theory’s historical origins and uses, see infra Part II and section I.B.[/footnote] This “legal ideology of removal”[footnote]See Tim Alan Garrison, The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations 5 (2002) (defining the “southern removal ideology” as the percolation of “threads of the long tradition of anti-Indian legal prejudice into a formal legal position that justified the expropriation of Native American land”).[/footnote] 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.”[footnote]The Report, S. Recorder (Milledgeville, Ga.), Apr. 9, 1827, at 2, 2.[/footnote] 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.”[footnote]H.R. Journal, 10th Sess., at 221 (Ala. 1829).[/footnote] 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.[footnote]See Garrison, supra note 27, at 237–39 (arguing that responsibility for Indian Removal rested with southern state leaders and judges, President Jackson, and Congress).[/footnote] 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.[footnote]See Saunt, supra note 3, at 53–111, 231–302 (discussing the debate over Removal and the subsequent expulsion and extermination of Native peoples).[/footnote] 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.[footnote]Walter Johnson, Soul by Soul: Life Inside the Antebellum Slave Market 214–15 (1999); Saunt, supra note 3, at 309–12. For a history of the early nineteenth-century expansion of slavery in the southern states, see generally Adam Rothman, Slave Country: American Expansion and the Origins of the Deep South (2005).[/footnote] Fundamentally, the state supremacy theory served the ends of settler colonialism, erasing Native presence for the benefit of Euro-American conquest and racial hierarchy.[footnote]For an extended discussion of the application of settler colonialism to Native American history, see Frederick E. Hoxie, Retrieving the Red Continent: Settler Colonialism and the History of American Indians in the U.S., 31 Ethnic & Racial Stud. 1153, 1159–63 (2008).[/footnote] 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.[footnote]There are numerous instances throughout U.S. history in which state sovereignty arguments have been used to subjugate certain racial groups, immigrants, and other minorities. The most famous examples are the federalism conflicts that arose over the continued oppression of Black people. State sovereignty arguments swirled around the perpetuation of slavery during the antebellum period of the nineteenth century, including during the Nullification Crisis, the admission of new states, and disputes over abolition activities and the recovery of escaped enslaved people. See generally 1 William W. Freehling, The Road to Disunion: Secessionists at Bay, 1776–1854 (1990) (discussing federalism conflicts involving southern states in the late eighteenth and early nineteenth centuries, including the Nullification Crisis); 2 William W. Freehling, The Road to Disunion: Secessionists Triumphant, 1854–1861 (2007) (studying the lead-up to and outbreak of the Civil War). And in the twentieth century, white Americans, intent on maintaining state-sanctioned racial segregation, employed states’ rights arguments to resist federal policies and court orders that sought to remedy discrimination against Black Americans. See generally George Lewis, Massive Resistance: The White Response to the Civil Rights Movement (2006) (recounting the segregationist opposition to civil rights from the 1940s to the 1960s).[/footnote] 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.[footnote]See infra Part III.[/footnote] 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.[footnote]For key recent works on this topic, see generally Gregory Ablavsky, Federal Ground: Governing Property and Violence in the First U.S. Territories 201–30 (2021) [hereinafter Ablavsky, Federal Ground] (describing conflicts over Indian affairs that occurred with the admission of Tennessee and Ohio to the Union); Deborah A. Rosen, American Indians and State Law: Sovereignty, Race, and Citizenship, 1790–1880 (2007) (tracing the development of state laws that applied to Native peoples); Bethel Saler, The Settlers’ Empire: Colonialism and State Formation in America’s Old Northwest (2015) (studying the impact of territorial policies and Wisconsin statehood on Native peoples in the region); Gregory Ablavsky, Empire States: The Coming of Dual Federalism, 128 Yale L.J. 1792, 1824–27, 1855–61 (2019) [hereinafter Ablavsky, Empire States] (compiling states’ attempts to eradicate tribal sovereignty in the late eighteenth and early nineteenth centuries).[/footnote] 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,[footnote]For Native histories focused on southern Indian removal, see generally Grant Foreman, Indian Removal: The Emigration of the Five Civilized Tribes of Indians (3d ed. 1972); Michael D. Green, The Politics of Indian Removal: Creek Government and Society in Crisis (1982); Ostler, supra note 25; Theda Perdue & Michael D. Green, The Cherokee Nation and the Trail of Tears (2007); Saunt, supra note 3.[/footnote] legal history,[footnote]For legal histories focused on southern Indian removal, see generally Ford, supra note 12; Garrison, supra note 27; Harring, supra note 15, at 25–44; Jill Norgren, The Cherokee Cases: The Confrontation of Law and Politics (1996).[/footnote] and American constitutional history.[footnote]For American constitutional histories focused on southern Indian removal, see generally Akhil Reed Amar, The Words that Made Us: America’s Constitutional Conversation, 1760–1840, at 634–40 (2021) (examining Removal with a focus on the interaction between the executive and judicial branches of the federal government); Gerald Leonard & Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders’ Constitution, 1780s–1830s, at 200–07 (2019) (exploring Removal as a conflict in which the Marshall Court and Andrew Jackson’s Democratic Party fought over constitutional meaning); Jill Lepore, These Truths: A History of the United States 215–16 (2018) (arguing that Removal was a Jacksonian policy made possible by Jackson ignoring Supreme Court decisions); Stephen Breyer, The Cherokee Indians and the Supreme Court, 87 Ga. Hist. Q. 408, 425–26 (2003) (arguing that the Cherokee cases ultimately strengthened the power of the Supreme Court); Joseph C. Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 Stan. L. Rev. 500, 501, 530–31 (1969) (using the Cherokee cases as a study of the Marshall Court’s motivations).[/footnote] 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.[footnote]See Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (forthcoming 2024) (manuscript at 249–348) (on file with the Columbia Law Review ) [hereinafter LaCroix, The Interbellum Constitution Manuscript] (tracing the development of “fractal federalism” in the legal relationship between the Cherokee Nation, Georgia, and the United States); Ablavsky, Empire States, supra note 36, at 1795–96, 1824–27, 1855–61 (partially finding American federalism’s origins in conflicts between states and Native nations in the post-Revolution and Founding Eras).[/footnote] 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.[footnote]See infra Part II and section I.B.[/footnote] Although the U.S. Supreme Court rejected the southern states’ arguments in the 1832 case of Worcester v. Georgia ,[footnote]31 U.S. (6 Pet.) 515, 544–45, 549–51, 559–62 (1832).[/footnote] the states emerged victorious when the federal government forcibly removed the Cherokee, Choctaw, Chickasaw, Muscogee (Creek),[footnote]When referencing the Muscogee Nation or its people, I have dropped the “Creek” identifier for the remainder of this Article to improve readability and to align my work with the Muscogee Nation’s recent efforts to drop the misnomer coined by British officials. See Angel Ellis, New Branding Campaign Launched by Muscogee Nation, Mvskoke Media (May 5, 2021), https://www.mvskokemedia.com/new-branding-campaign-launched-by-muscogee-nation/ [https://perma.cc/X67S-C4CF].[/footnote] and Seminole Nations from the South to Indian Territory.[footnote]See sources cited supra note 37.[/footnote] 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.[footnote]See infra section III.A.[/footnote] 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.[footnote]See infra section III.B.[/footnote] 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.[footnote]See, e.g., Robert J. Miller, Jacinta Ruru, Larissa Behrendt & Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies 52–61 (2010) (discussing how federal courts have consistently applied the Doctrine of Discovery in controversies involving Native nations over the last 200 years); Robert A. Williams, Jr., Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America 151–52 (2005) (identifying a “principle of racism” throughout the Justices’ Indian law opinions); Adam Crepelle, Lies, Damn Lies, and Federal Indian Law: The Ethics of Citing Racist Precedent in Contemporary Federal Indian Law, 44 N.Y.U. Rev. L. & Soc. Change 529, 533 (2021) (“Based both in impermissible racial stereotypes and a doctrine of white supremacy, [federal Indian law] case law is overtly racist.”); Kathryn E. Fort, The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court, 57 St. Louis U. L.J. 297, 300 (2013) (noting the continued use of the “vanishing Indian” stereotype in the Court’s historical narratives).[/footnote] 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.[footnote]Legal scholarship has extensively reviewed the Supreme Court’s hostility to tribal interests over the past several decades. Matthew Fletcher has argued that tribal losses often stemmed from the Court’s interest in larger constitutional problems as opposed to Indian law issues and its tendency to grant certiorari to opponents of tribal interests. See Matthew L.M. Fletcher, Factbound and Splitless: The Certiorari Process as Barrier to Justice for Indian Tribes, 51 Ariz. L. Rev. 933, 935–37 (2009) (discussing certiorari disparities); Matthew L.M. Fletcher, The Supreme Court’s Indian Problem, 59 Hastings L.J. 579, 580, 582–83 (2008) (arguing that the Supreme Court lacks desire to “decide tribal interests” even in cases involving federal Indian law). The late David Getches argued that a proclivity to institute a form of colorblind jurisprudence and uphold American cultural values resulted in antitribal holdings. David H. Getches, Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice and Mainstream Values, 86 Minn. L. Rev. 267, 268–69 (2001) [hereinafter Getches, Beyond Indian Law]. In particular, Getches contended that the Rehnquist Court’s robust support for states’ rights resulted in a line of cases from the mid-1980s to 2000 in which state interests prevailed over tribal parties at a disproportionate rate. Id. at 268, 320–23, 344–45.[/footnote] 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.[footnote]For a similar analysis of federal Indian law as a problem of jurisdictional overlap between Native nations and states that leads to “competitive sovereign erosion,” see Michael D.O. Rusco, Oklahoma v. Castro-Huerta , Jurisdictional Overlap, Competitive Sovereign Erosion, and the Fundamental Freedom of Native Nations, 106 Marq. L. Rev. 889, 919–30 (2023).[/footnote] And this view contradicts both the original understanding of Indian affairs authority and the Native nations’ constitutional status.[footnote]The recognition of Native nations’ sovereignty is enshrined in U.S. constitutional law. “Indian tribes” are listed in the Commerce Clause alongside other sovereigns: foreign nations and the states. U.S. Const. art. I, § 8, cl. 3. And the foundational Indian law cases— Cherokee Nation v. Georgia and Worcester v. Georgia —explicitly recognize tribal sovereignty under various clauses of the Constitution. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832) (“The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties.”); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16–20 (1831) (recognizing that the acts of the United States under the Treaty Power and Commerce Clause “plainly recognize the Cherokee nation as a state”).[/footnote] This particular view of states and tribes adds to Indian law scholars’ analysis of the Court’s “subjectivist approach” to Indian law cases.[footnote]For an excavation and critique of the “subjectivist” trend in the Supreme Court’s Indian law decisions at the end of the twentieth century and beginning of the twenty-first century, see David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 Calif. L. Rev. 1573, 1575–76 (1996) [hereinafter Getches, Conquering the Cultural Frontier]; Dylan R. Hedden-Nicely & Stacy L. Leeds, A Familiar Crossroads: McGirt v. Oklahoma and the Future of the Federal Indian Law Canon, 51 N.M. L. Rev. 300, 305–07 (2021).[/footnote] 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.”[footnote]Getches, Conquering the Cultural Frontier, supra note 51, at 1575; see also Hedden-Nicely & Leeds, supra note 51, at 305 (citing Getches, Conquering the Cultural Frontier, supra note 51, at 1575).[/footnote] 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.[footnote]See infra sections III.B, IV.A.[/footnote] 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,[footnote]Getches, Conquering the Cultural Frontier, supra note 51, at 1622–26; Hedden-Nicely & Leeds, supra note 51, at 339.[/footnote] 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.[footnote]Getches, Conquering the Cultural Frontier, supra note 51, at 1620. Getches noted three “[r]ules of [j]udicial [s]ubjectivism”: (1) the “retreat[]” from Indian canons of construction; (2) the use of nineteenth-century allotment and assimilation policies as the “benchmark” for defining tribal sovereignty; and (3) the balancing of non-Indian interests to reduce the scope of tribal sovereignty “to the Court’s own notion of what it ought to look like.” Id.[/footnote] 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 [footnote]See generally Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787 (2019) [hereinafter Blackhawk, Federal Indian Law as Paradigm] (advocating for a new paradigm of federal constitutional law that centers federal Indian law and colonialism); Matthew L.M. Fletcher, Politics, Indian Law, and the Constitution, 108 Calif. L. Rev. 495 (2020) (arguing that the Constitution authorizes Congress to legally classify on the basis of Indian status); Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 433 (2005) (analyzing the incoherence of federal Indian law); Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195 (1984) (surveying the scope of federal power over Native peoples).[/footnote] and Indian (or tribal)[footnote]See generally Gregory Ablavsky, “With the Indian Tribes”: Race, Citizenship, and Original Constitutional Meanings, 70 Stan. L. Rev. 1025 (2018) (uncovering the meaning of “tribe” and “Indian” in the late eighteenth-century); Elizabeth A. Reese, The Other American Law, 73 Stan. L. Rev. 555 (2021) (advocating for the integration of tribal law into mainstream understandings of American law); Angela R. Riley, (Tribal) Sovereignty and Illiberalism, 95 Calif. L. Rev. 799 (2007) (arguing for the recognition of tribal sovereignty even when tribal decisions conflict with Western liberal ideals); Gloria Valencia-Weber, Tribal Courts: Custom and Innovative Law, 24 N.M. L. Rev. 225 (1994) (characterizing tribes as a “third sovereign” that must be included in the legal discourse).[/footnote] 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.[footnote]For a piece of historical scholarship that examines the impact of state law on Native peoples (though omitting thorough analysis of the historical connection between state power and federal Indian law), see generally Rosen, supra note 36, (studying the application of state law to Native peoples from the late eighteenth to the late nineteenth century). When Indian law scholars have focused on the history of states’ arguments or authority, it has been to describe the origins of a specific legal principle. See, e.g., Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1039–52 (2015) [hereinafter Ablavsky, Indian Commerce Clause] (examining the origins of the federal government’s exclusive authority over Indian affairs in the Founding Era); Gloria Valencia-Weber, The Supreme Court’s Indian Law Decisions: Deviations From Constitutional Principles and the Crafting of Judicial Smallpox Blankets, 5 U. Pa. J. Const. L. 405, 409–13 (2003) (excavating the history of state authority to undermine the constitutional basis for the principles underlying the Court’s reasoning in Nevada v. Hicks, 533 U.S. 353 (2001)).[/footnote] Analysis of states and their authority has usually only appeared in scholarship that compares the political statuses of states and Native nations[footnote]See, e.g., Gregory Ablavsky, Sovereign Metaphors in Indian Law, 80 Mont. L. Rev. 11, 20–27 (2019) (discussing analogies between states and Native nations both historically and in the modern era).[/footnote] or that explores how states and tribes should work with one another in certain policy areas.[footnote]See, e.g., Matthew L.M. Fletcher, Retiring the “Deadliest Enemies” Model of Tribal–State Relations, 43 Tulsa L. Rev. 73, 81–83 (2007) [hereinafter Fletcher, Deadliest Enemies] (describing how “negotiation and agreement” now characterize tribal–state relations); Katherine Florey, Making It Work: Tribal Innovation, State Reaction, and the Future of Tribes as Regulatory Laboratories, 92 Wash. L. Rev. 713, 763–84 (2017) (analyzing ways in which tribes and states can benefit each other through regulatory innovations).[/footnote] 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.[footnote]This Article joins a handful of other recent articles that have begun analyzing state power in relation to federal Indian law in the wake of Castro-Huerta . See generally Ablavsky, Too Much History, supra note 20 (calling Castro-Huerta indicative of the Court’s problematic approach of using “too much history” in Indian law jurisprudence); Michael Doran, Tribal Sovereignty Preempted, 89 Brook. L. Rev. (forthcoming 2023), https://ssrn.com/abstract=4473476 [https://perma.cc/FT8N-JJZH] (tracking how the “symmetry for state and tribal authority” has been dismantled, leading to Castro-Huerta ); Hedden-Nicely, The Reports of My Death, supra note 20 (arguing that Worcester ’s broad principles remain good law even after Castro-Huerta ); Dylan R. Hedden-Nicely, The Terms of Their Deal: Revitalizing the Treaty Right to Limit State Jurisdiction in Indian Country, 27 Lewis & Clark L. Rev. 457, 481–91 (2023) [hereinafter Hedden-Nicely, The Terms of Their Deal] (advocating for the application of treaty-rights analysis in Indian law preemption cases rather than Castro-Huerta ’s balancing test); John P. LaVelle, 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, 74 Mercer L. Rev. 845 (2023) (examining Supreme Court cases addressing state power over Native nations to critique the Court’s opinion in Castro-Huerta ); Rusco, supra note 49 (considering Castro-Huerta ’s role in the erosion of tribal sovereignty). But it departs from this scholarship by providing an overarching historical and theoretical framework for understanding the legal principles used in Castro-Huerta within the context of federal Indian law doctrine.[/footnote] 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.[footnote]This formalist approach is evident in recent Court developments in several areas of constitutional law, including the creation of the anticommandeering doctrine under the Tenth Amendment, see Printz v. United States, 521 U.S. 898, 918–22 (1997), the expansion of state sovereign immunity, see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 60–73 (1996), and the limitations of Congress’s spending power, see NFIB v. Sebelius, 567 U.S. 519, 575–85 (2012).[/footnote] 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.[footnote]For a critique of the Court’s modern originalist approach to federalism, see Alison L. LaCroix, The Interbellum Constitution: Federalism in the Long Founding Moment, 67 Stan. L. Rev. 397, 440–45 (2015) (uncovering understandings of Congress’s spending power in the early nineteenth century).[/footnote] 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.[footnote]See, e.g., Shelby County v. Holder, 570 U.S. 529, 544 (2013) (striking down the coverage formula in section 4 of the Voting Rights Act as a violation of states’ “equal sovereignty”). For an analysis and critique of the Court’s equal sovereignty principle and its use in Shelby County , see Leah M. Litman, Inventing Equal Sovereignty, 144 Mich. L. Rev. 1207, 1209–10 (2016).[/footnote] 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.[footnote]This Article’s use of the term “elimination” signifies Euro-American attempts to eradicate indigeneity on the North American continent through cultural assimilation, legal incorporation, and even violence. Its use aligns with the concept in settler colonial theory that the development of settler colonies and states, such as the United States, were “premised on the elimination of native societies.” Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event 2 (1999).[/footnote] 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.[footnote]See infra section II.C.[/footnote] 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.[footnote]See infra section IV.B.[/footnote] 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.[footnote]See Ramos v. Louisiana, 140 S. Ct. 1390, 1405 (2020) (suggesting that the Court must evaluate the racist origins of laws when assessing their constitutionality). In particular, Justice Neil Gorsuch has called for the Court to overturn the Insular Cases , which justify the federal government’s power over unincorporated territories, because they rely on “racial stereotypes” that were used to justify U.S. imperialism at the end of the nineteenth century. United States v. Vaello Madero, 142 S. Ct. 1539, 1552 (2022) (Gorsuch, J., concurring).[/footnote] 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 .[footnote]31 U.S. (6 Pet.) 515 (1832).[/footnote] 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 .[footnote]Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022).[/footnote] 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.

Federal Indian Law

THE SPECTER OF INDIAN REMOVAL: THE PERSISTENCE OF STATE SUPREMACY ARGUMENTS IN FEDERAL INDIAN LAW

MAPPING DUAL SOVEREIGNTY AND DOUBLE JEOPARDY IN INDIAN COUNTRY CRIMES