In Oklahoma v. Castro-Huerta, the Supreme Court held that states have inherent authority to prosecute crimes committed by non-Indians in “Indian country.” Only two years earlier, the Court in McGirt v. Oklahoma held that most of eastern Oklahoma was Indian country, and thus immune from any state criminal jurisdiction. Castro-Huerta limited this immunity and narrowed the Court’s view of tribal sovereignty as a whole. The majority represented the Court’s originalist faction—minus Justice Gorsuch, who had penned both the majority opinion in McGirt and the dissent in Castro-Huerta. The majority and dissent disagreed over whether federal statutes preempted Oklahoma’s criminal jurisdiction. But the more fundamental issue is whether criminal jurisdiction in Indian country is constitutional in the first place. This Note asks whether Justice Kavanaugh and Justice Gorsuch faithfully employed an originalist methodology to resolve that issue. More generally, this Note serves as a study of originalism’s usefulness in guiding judges towards the correct legal sources to answer constitutional questions, as well as its implications for the constitutional basis for federal criminal jurisdiction in Indian country; and it advances the argument that treaties should be the primary legal authority governing tribal relations.
Liam T. Sheridan,
Solemn Vow: Solum's Originalism, Treaties, and Tribal Sovereignty in Castro-Huerta,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol75/iss2/7