In 1886, the supreme court in United States v Kagama described states as the “deadliest enemies” of Native nations. The case concerned criminal jurisdiction on Indian reservations, but it also recognized the role states, and their citizens, played in fueling Native conflict and dispossession. It was a rare occasion in which the court acknowledged it was making Indian law in the context of great violence and suffering.
Paradoxically, the court found that the very nation that waged wars of extermination and invasion against Native people also declared itself their sole guardian, protecting its “wards” from the “local ill feeling” of land-hungry whites flooding Native lands in the western states. And where the US constitution was lacking in language defining federal authority over Native nations, the court had invented it, for better or for worse.
That’s why the court affirmed in Kagama, like it has for nearly two centuries, that Indian country sat apart from states and was instead subject to congressional and federal authority. Put simply, states had no business in tribal affairs.
That decision and others like it – however imperfect and drenched in conquest they were – supposedly shielded Native people and their reservations from the arbitrary authority of states and hostile white settlers.
Last month, the supreme court tore up that decision and centuries of legal precedent with it. The 5-4 decision in Oklahoma v Castro-Huerta found that state governments have the right to prosecute non-Natives for crimes committed against tribal members on reservation lands. The decision weakens the effects of McGirt v Oklahoma, which found that most of eastern Oklahoma was still legally Indian Country, where many crimes were beyond the grasp 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, resting his argument on a false 10th amendment claim, which doesn’t authorize states to intervene in tribal affairs.
His words could have come from the most ardent anti-Indian racist of a bygone era. Asserting state criminal jurisdiction over Native lands has been a primary tactic of legally eliminating Native people. Chief Justice John Roberts’ court draws from a long tradition of violent conquest, going back to Cherokee removal in the 19th century and to the termination policies of the 20th.
The theory of state supremacy, supposedly enshrined in the final amendment of 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 Black people as white property in slave states. More recently, Kavanaugh cited the 10th amendment in his concurring opinion overturning Roe v Wade.
States, according to this extremist – and now dominant – view in the court, possess the authority to abolish and criminalize abortions, potentially curb voting rights and now abrogate treaties and redefine federal relations with Native nations.
Neil Gorsuch – who, like Kavanaugh, is a Trump-appointee and a proponent of the revanchist legal theory known as “originalism” – wrote the dissenting opinion for Castro-Huerta. “Unknown to anyone until today,” Gorsuch sarcastically wrote, “state law applied all along” to Indian country. While scathing in his rebuke, Gorsuch strangely didn’t touch Kavanaugh’s shaky 10th amendment claim.
State jurisdiction might 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 relief against the invasion of their homelands 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 states. Despite this protection, President Andrew Jackson did nothing to enforce it.
In 1838, troops with bayonets rounded up Cherokee families at dinner, men in the fields, and children at play. A “lawless rabble” followed on the soldiers’ heels to loot, pillage and burn – deracinating the Cherokee from the landscape and removing them to present-day Oklahoma.
“I fought through the civil war and have seen men shot to pieces and slaughtered by thousands, but the Cherokee removal was the cruelest work I ever knew,” a Georgia volunteer, later Confederate colonel, said.
Recalcitrant Indian hating, however, hardly subsided by the 20th century. A renewed push to end tribal sovereignty began at the end of the second world war with politicians from western states with large Indian reservations calling for an end of the “Indian problem”.
Congress passed termination bills in 1953. One law immediately extinguished federal recognition of the Flathead, Klamath, Menominee, Potawatomi and Turtle Mountain Chippewa tribes, opening their lands for privatization. Another authorized states to assume criminal jurisdiction over Indian reservations. The results were devastating and in some cases irreversible.
Termination, argued the Lakota historian Edward Valandra, “made legal the overthrow of Native governments, the stealing of their lands and the extermination of Native Peoples and cultures”.
In the 1960s, a militant Red Power movement advocating treaty rights and sovereignty gained traction in the north-west during the so-called “fish wars”, resulting in violent, and sometimes deadly, clashes with white fishermen and state game wardens. The 1974 Boldt decision finally guaranteed Native fishing rights in the Pacific north-west.
Native movements weakened the termination agenda. Today, Native-led movements are the most confrontational arm of the climate justice movement. Opening Native lands for more state intervention and jurisdiction is backlash against the historic gains we’ve made as a people to protect our lands, sovereignty, and the future of this planet.
The supreme court ruling in Castro-Huerta has given termination a new life and is a foreboding sign for the court’s next term, when it will be deciding the constitutionality of the Indian Child Welfare Act in Brackeen v Haaland. The plaintiffs in that case are using tenth amendment claims and the arguments of terminationists that Native nations exist as race-based entities, not because of their treaty rights and inherent political sovereignty.
Conquest is the basis by which the supreme court has created law to dispossess and to protect Native nations. And it is time we move beyond the backwards, paternalistic legal paradigm that allows nine unelected judges in Washington DC to decide the fates and validity of the original people of this land, who have existed before the US constitution and the very states that try to destroy us.
Nick Estes is a citizen of the Lower Brule Sioux Tribe. He is a journalist, historian and host of The Red Nation Podcast. He is the author of Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance
