The Right-Wing Court Has a New Target: Native American Rights

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.