Something bizarre is happening in Oklahoma. The state’s high courts, well-versed by long experience in federal Indian law, are rewriting fundamental rules of that field. Since 2022, the Oklahoma Supreme Court and Oklahoma Court of Criminal Appeals have rejected challenges to state jurisdiction over tribal citizens in child welfare, 1Open this footnote Close this footnote 1 Matter of S.J.W., 535 P.3d 1235, 1238, 1246 (Okla. 2023) (holding state had jurisdiction over Indian Child Welfare Act case involving non-member Indian in Indian country). …Open this footnote Close domestic violence, 2Open this footnote Close this footnote 2 Milne v. Hudson, 519 P.3d 511, 512, 516 (Okla. 2022) (holding state had jurisdiction to issue a civil protection order on behalf of a Muscogee woman against a Cherokee man residing on the Muscogee (Creek) Reservation). …Open this footnote Close and ordinary criminal matters. 3Open this footnote Close this footnote 3 City of Tulsa v. O’Brien, No. S-2023-715, 2024 WL 5001684, at *2 (Okla. Ct. Crim. App. Dec. 5, 2024) (upholding criminal jurisdiction over non-member Indian in Indian country); Deo v. Parish, 541 P.3d 833, 835, 838 (Okla. Ct. Crim. App. 2023) (rejecting habeas petition claiming lack of subject matter jurisdiction over crime by Muscogee man on the Muscogee Reservation). …Open this footnote Close These decisions violate both statutory text 4Open this footnote Close this footnote 4 25 U.S.C. § 1911(a) (stating that tribal governments have exclusive jurisdiction over child welfare cases involving Indian children on reservations). …Open this footnote Close and the language and holdings of reams of modern Supreme Court decisions. 5Open this footnote Close this footnote 5 See, e.g., McGirt v. Oklahoma, 591 U.S. 894, 898 (2020) (“State courts generally have no jurisdiction to try Indians for conduct committed in ‘Indian country.’”); Negonsott v. Samuels, 507 U.S. 99, 102-03 (1993) (“As the text of § 1153 [the Major Crimes Act] and our prior cases make clear, federal jurisdiction over the offenses covered by the Indian Major Crimes Act is ‘exclusive’ of state jurisdiction.” (citing United States v. Kagama, 118 U.S. 375, 384 (1886) and later cases)); United States v. John, 437 U.S. 634, 651 (1978) (agreeing that the Major Crimes Act, “ordinarily is pre-emptive of state jurisdiction when it applies”); United States v. Antelope, 430 U.S. 641, 643 n.2 (1977) (noting that except for the federal jurisdiction granted by the Major Crimes Act, crimes between Indians on reservations are subject solely to tribal law); McClanahan v. Arizona, 411 U.S. 164, 170-71 (1973) (“ ‘State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply.’”); Seymour v. Superintendent, 368 U.S. 351, 359 (1962) (“Since the burglary with which petitioner was charged occurred on property plainly located within the limits of that reservation, the courts of Washington had no jurisdiction to try him for that offense.”); Williams v. Lee, 358 U.S. 217, 220 (1959) (“[I]f the crime was by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress has remained exclusive.”); Rice v. Olson, 324 U.S. 786, 789, 790, 792 (1945) (requiring habeas review of Winnebago petitioner’s challenge to his criminal prosecution by Nebraska and noting that “[t]he policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation’s history”). …Open this footnote Close  The disregard of established principles is so great that the U.S. Department of Justice has sued two Oklahoma district attorneys to enjoin them from prosecuting Indians in violation of federal law. 6Open this footnote Close this footnote 6 Tres Savage, DOJ sues DAs Carol Iski, Matt Ballard to stop prosecuting Indians in Indian Country, NonDoc (Dec. 24, 2024), http://perma.cc/SY7W-L6NZ. …Open this footnote Close

But Oklahoma courts didn’t start this strange journey on their own. Instead, they are taking inspiration from Oklahoma v. Castro-Huerta, in which the Supreme Court held that states could prosecute non-Indians for crimes committed against Indians in Indian country. 7Open this footnote Close this footnote 7 Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022). …Open this footnote Close As Justice Gorsuch wrote in dissent, to establish its jurisdiction, Oklahoma had to “pursue a proposition so novel and so unlikely that in over two centuries not a single State has successfully attempted it in this Court.” 8Open this footnote Close this footnote 8 Id. at 667 (Gorsuch, J. dissenting). …Open this footnote Close And yet the Supreme Court’s 5-4 decision blessed this attempt.

Justice Gorsuch’s dissent blasted the decision as an “egregious misappropriation of legislative authority” that ignored a “mountain of statutes and precedents” to create “an embarrassing new entry into the anticanon of Indian law.” 9Open this footnote Close this footnote 9 Id. at 684, 695. …Open this footnote Close Scholars have similarly described the decision as “bizarre and horrifying,” 10Open this footnote Close this footnote 10 Elizabeth Hidalgo Reese, Conquest in the Courts, The Nation (July 6, 2022), https://perma.cc/YR9V-5NBA. …Open this footnote Close an exercise in “unvarnished subjectivism,” 11Open this footnote Close this footnote 11 Gregory Ablavsky, Too Much History: Castro-Huerta and the Problem of Change in Indian Law, 2022 Sup. Ct. Rev. 293, 319. …Open this footnote Close a lurch “back toward a policy of colonialism,” 12Open this footnote Close this footnote 12 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, 459 (2023). …Open this footnote Close an “alarming distortion[] of history and precedent,” 13Open this footnote Close this footnote 13 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, 848 (2023). …Open this footnote Close and a triumph, 200 years later, of legal arguments that have been rejected since the Trail of Tears. 14Open this footnote Close this footnote 14 W. Tanner Allread, The Specter of Indian Removal: The Persistence of State Supremacy Arguments in Federal Indian Law, 123 Colum. L. Rev. 1533, 1537 (2023). …Open this footnote Close

This Essay agrees with these critiques but makes a different one. Rather than show how Castro-Huerta is unmoored from federal Indian law, it reveals its departure from legal rules outside the field, specifically the norms of preemption. 15Open this footnote Close this footnote 15 Some of these ideas are explored in more detail in my forthcoming article, Bethany R. Berger, Preempting Colonialism: The Constitutional & Structural Dimensions of Federal Indian Law Preemption, U.C. Davis L. Rev. (forthcoming 2025), https://perma.cc/4BV4-Q5WY. …Open this footnote Close The Castro-Huerta majority claimed to be applying “ordinary principles of preemption” in determining whether the General Crimes Act preempted state jurisdiction 16Open this footnote Close this footnote 16 Castro-Huerta, 597 U.S. at 638. …Open this footnote Close and held that it did not preempt them because the statute’s text did not expressly state this purpose. 17Open this footnote Close this footnote 17 Id. at 642 (“the text of the General Crimes Act says no such thing”). …Open this footnote Close This violates how generations of Supreme Court Indian Law opinions hold the analysis should work. 18Open this footnote Close this footnote 18 See Hedden-Nicely, supra note 12 at 462–465; Berger, supra note 15 at 3. …Open this footnote Close But when those ordinary principles are properly understood, it violates them as well.

What is more, this violation is a constitutional mistake. Preemption is the most quotidian of constitutional inquiries, a question of whether state authority is barred by Constitution’s guarantee that federal laws and treaties are “the supreme Law of the Land.” 19Open this footnote Close this footnote 19 U.S. Const. art. VI, cl. 2. …Open this footnote Close It concerns not just construction of federal laws, but the constitutional relationship between states and the United States. And because that relationship varies across fields—from, say, the plenary and exclusive foreign affairs power to the secondary and concurrent domestic relations power—so too does the preemption inquiry.

This Essay first shows how the preemption inquiry shifts in areas where the Constitution, by text or by design, creates dominant authority in the federal government. It next outlines why Indian Affairs is such an area and how previous preemption cases reflect this. It then shows that the decision in Oklahoma v. Castro-Huerta blatantly violates that constitutional relationship. The Essay concludes with how future decisions can cure Castro-Huerta’s constitutional mistakes.

I. The Constitution and Preemption

As others have examined, the Supremacy Clause is not the only constitutional principle at issue in preemption. 20Open this footnote Close this footnote 20 See, e.g., Kerry Abrams, Plenary Power Preemption, 99 Va. L. Rev. 601, 603 (2013) (arguing for importance of congressional plenary power in preemption); Thomas Merrill, Preemption and Institutional Choice, 102 Nw. U. L. Rev. 727, 730 (2008) (arguing preemption should be understood through its “constitutional, institutional, and pragmatic values”); Ernest Young, “The Ordinary Diet of The Law”: The Presumption Against Preemption in the Roberts Court, 2011 Sup. Ct. Rev. 253, 256 (situating preemption within constitutional federalism). …Open this footnote Close Instead, preemption reflects the constitutional sources of federal power involved and the relationship between states and the federal government with respect to that power. This relationship shifts across fields, and so too does the preemption inquiry.

Understanding this varying constitutional backdrop may explain more about the results in preemption cases that the traditional categories of express, implied, and field preemption. The Supreme Court itself recently acknowledged that although its decisions had used “different labels to describe the different ways in which federal statutes may displace state laws — speaking, for example, of express, field, and conflict preemption . . . these categories ‘are not rigidly distinct.’” 21Open this footnote Close this footnote 21 Virginia Uranium, Inc. v. Warren, 587 U.S. 761, 767 (2019) (plurality opinion) (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372, n.6 (2000)); Gallup Med Flight, LLC v. Builders Trust of New Mexico, 240 F.Supp.3d 1161, 1214-1218 (D.N.M. 2017) (discussing conflicting twenty-first century Supreme Court statements over obstacle and conflict preemption). …Open this footnote Close As Professor Thomas Merrill has examined, cases involving express preemption clauses generally turn in part on implied preemption factors. 22Open this footnote Close this footnote 22 Merrill at 738-39. …Open this footnote Close Further, Professor Ernest Young notes, “[m]any, if not most, preemption cases are not about the interpretation of ambiguous statutory text, but rather about how to identify the underlying purposes of federal statutes and to assess the acceptable degree of conflict between those purposes and state regulatory measures.” 23Open this footnote Close this footnote 23 Ernest A. Young, The Rehnquist Court’s Two Federalisms, 83 Tex. L. Rev. 1, 132 (2004). …Open this footnote Close Professor Merrill agrees, arguing that while the Court shrouds its preemption decisions in a cover of congressional intent, its judgements “are in fact grounded in judicial perceptions about the desirability of displacing state law in any given area.” 24Open this footnote Close this footnote 24 Merrill at 741. …Open this footnote Close To the extent that those judgments reflect more than naked policy preference, they must reflect the constitutional relationship between state and federal power.

And as the Supreme Court has long recognized, that constitutional relationship is not the same in every field. 25Open this footnote Close this footnote 25 In 2011, Professor Young argued against this variability, anticipating that the then-pending Arizona v. United States, 567 U.S. 387 (2012), would establish that “concurrent regulation is the norm even in fields like immigration that impact foreign relations.” Young, Ordinary Diet, supra note 20, at 340. As discussed below, Professor Young was wrong, and Arizona v. United States would become a modern testament to the constitutional variability of preemption doctrine. 567 U.S. at 394-95 (relying on the constitutional power in foreign affairs and the “fundamental” principle “that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States,” in holding that federal immigration law preempted Arizona laws criminalizing failure to comply with federal alien-registration requirements or seeking or engaging in work in Arizona in violation of federal law). …Open this footnote Close In areas where the Constitution does not deliberately limit state power—such as the private law of commerce, land use, or domestic relations 26Open this footnote Close this footnote 26 Haaland v. Brackeen, 143 S. Ct. 1609, 1629-30 (2023) (discussing domestic relations). …Open this footnote Close —there is a presumption against preemption. 27Open this footnote Close this footnote 27 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (holding that when Congress legislates “in a field which the States have traditionally occupied . . . we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress”); Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 151 (2001) (“There is indeed a presumption against pre-emption in areas of traditional state regulation such as family law.”). …Open this footnote Close But in areas where the Constitution makes federal authority preeminent, far less is required. As acknowledged in Rice v. Olsen, the foundational modern case establishing the presumption against preemption, in such fields, “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” 28Open this footnote Close this footnote 28 Rice, 331 U.S. at 230; see also Boyle v. United Techs. Corp., 487 U.S. 500, 504 (1988) (“In most fields of activity, to be sure, this Court has refused to find federal pre-emption of state law in the absence of either a clear statutory prescription . . . or a direct conflict between federal and state law . . . . But we have held that a few areas, involving ‘uniquely federal interests,’ are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced, where necessary, by . . . so-called ‘federal common law.’” (citations omitted)). …Open this footnote Close Indian Affairs is one of those fields, and applying the ordinary principles of preemption applicable to such a field shows why Castro-Huerta violated not just congressional intent but also constitutional law.

The foreign affairs power is a particularly fertile source of examples of the flipped script in areas of federal supremacy. Rice v. Olsen itself cited Hines v. Davidowitz, 29Open this footnote Close this footnote 29 312 U.S. 52 (1941). …Open this footnote Close which held that given “the supremacy of the national power in the general field of foreign affairs” the Federal Alien Registration Act preempted Pennsylvania’s Alien Registration Act, although the state statute did not conflict with and could be seen as reinforcing the federal act. 30Open this footnote Close this footnote 30 See id. at 61-62, 74. …Open this footnote Close Twenty-first-century cases build on this principle. In Crosby v. National Foreign Trade Council, for example, the Court held a federal statute imposing certain sanctions against Burma and authorizing the President to impose more preempted a Massachusetts statute barring state contracts with entities doing business with that country. 31Open this footnote Close this footnote 31 530 U.S. 363, 367-68, 373 (2000). …Open this footnote Close The Court underscored that express preemption was not needed in foreign affairs; because the Massachusetts law was an obstacle to a presidential “‘comprehensive’ strategy” in its relations to Burma it violated the Supremacy Clause. 32Open this footnote Close this footnote 32 Id. at 382. …Open this footnote Close Similarly, American Insurance Association v. Garamendi held that presidential diplomatic agreements with Germany on compensating Holocaust victims preempted a California law requiring disclosure of insurance policies sold between 1920 and 1945. 33Open this footnote Close this footnote 33 539 U.S. 396, 401, 421 (2003) …Open this footnote Close In Garamendi, there was no federal statute on the subject, and even the diplomatic agreements arguably did not conflict with the state law, but the Court emphasized the constitutional history of the foreign affairs power and the President’s independent preemptive power in foreign affairs. 34Open this footnote Close this footnote 34 See id. at 414, 420. The majority in Garamendi found that there was “evidence of clear conflict” because “Presidential foreign policy has been to encourage European governments and companies to volunteer settlement funds in preference to litigation or coercive sanctions,” id. at 421, while the California law mandated disclosure, but both U.S. and state law favored compensation for theft of the value of insurance claims, and the Court acknowledged that the U.S. agreements with Germany declared that “the United States does not suggest that its policy interests concerning [resolution by a German-created] Foundation in themselves provide an independent legal basis for dismissal” of Holocaust-compensation claims. Id. at 406 (quoting United States-Germany: Agreement Concerning The Foundation “Remembrance, Responsibility And The Future” 39 Int’l .Leg. Mat. 1298, 1304 (2000)). …Open this footnote Close

Similarly, in immigration cases like Hines, it is “as if a very heavy thumb has been placed on the federal government’s side of the scale.” 35Open this footnote Close this footnote 35 See Abrams, supra note 20, at 603. …Open this footnote Close In particular, in Arizona v. United States the Court found preempted a state law criminalizing failure to comply with federal alien registration requirements or working without authorization, declaring “States may not enter, in any respect, an area the Federal Government has reserved for itself.” 36Open this footnote Close this footnote 36 567 U.S. 387, 393-94, 402-03, 407 (2012). But cf. Kansas v. Garcia, 140 S. Ct. 791, 797, 805-06 (2020) (distinguishing Arizona to hold that federal immigration registration laws did not prohibit prosecutions of immigrants who used others’ social security numbers to work for state identity theft and false information crimes). …Open this footnote Close As in Hines, the Arizona law had “the same aim as federal law and adopts its substantive standards.” 37Open this footnote Close this footnote 37 Arizona, 567 U.S. at 402. …Open this footnote Close Nevertheless, simply by creating additional sanctions for their violation, the state ran afoul of the constitutional commitment to federal primacy in alien registration. 38Open this footnote Close this footnote 38 Id. at 402-03. …Open this footnote Close

Foreign affairs is not the only area where the Constitution shifts the presumption against preemption. Some involve specific constitutional grants of power. In Arizona v. Inter Tribal Council of Arizona, Inc., 39Open this footnote Close this footnote 39 570 U.S. 1 (2013). …Open this footnote Close for example, Court relied on Article I, Section 4, Clause 1 in declaring that “[t]he assumption that Congress is reluctant to pre-empt does not hold when Congress acts under that constitutional provision, which empowers Congress to ‘make or alter’ state election regulations.” 40Open this footnote Close this footnote 40 Id. at 14 (citation omitted). …Open this footnote Close There, the Court held that the National Voter Registration Act, which itself required citizenship to register to vote, preempted Arizona’s law requiring certain proofs of citizenship. 41Open this footnote Close this footnote 41 Id. at 15. …Open this footnote Close Similarly, Norfolk Southern Railway Co. v. Kirby held that the constitutional grant of admiralty jurisdiction dictated that federal common law, rather than state law, governed interpretation of a contract regarding liability for cargo damaged in Georgia after shipping from Australia. 42Open this footnote Close this footnote 42 543 U.S. 14, 22-23 (2004) (quoting Art. III, § 2, cl. 1). …Open this footnote Close

Other examples involve areas where the constitutional design implicitly commits certain areas to federal control. In United States v. Locke, 43Open this footnote Close this footnote 43 United States v. Locke, 529 U.S. 89 (2000). …Open this footnote Close for example, the Court held that federal maritime law preempted Washington State’s law regulating oil tankers to prevent spills. Emphasizing that authority over interstate navigation was one of the purposes for which the Constitution was created, Locke declared that “in this area there is no beginning assumption that concurrent regulation by the State is a valid exercise of its police powers.” 44Open this footnote Close this footnote 44 Id. at 99, 108. An additional area where the Constitution shifts the inquiry is patent law, where the Court has relied on the constitutional grant of authority to “promote the Progress of Science and useful Arts” to hold that states could not provide protection to inventions not protected by federal patent law. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166-68 (1989) (holding that while the Patent Clause did not of its own force preempt state protection against consumer confusion or unfair competition, Florida by providing protection for intellectual property entered a field “reserved to Congress”). …Open this footnote Close More recently, in Franchise Tax Board v. Hyatt, 45Open this footnote Close this footnote 45 Franchise Tax Bd. of California v. Hyatt, 139 S. Ct. 1485 (2019). …Open this footnote Close the Supreme Court held state immunity from private suits in the courts of other states was “‘implied as an essential component of federalism:’” 46Open this footnote Close this footnote 46 Id. at 1498 (citation omitted). …Open this footnote Close “The Constitution also reflects implicit alterations to the States’ relationships with each other,” so that “States may not supply rules of decision governing ‘disputes implicating the[ir] conflicting rights,’” leaving federal common law to govern disputes over interstate waters, boundaries, and compacts. 47Open this footnote Close this footnote 47 Id. at 1497-98 (citation omitted). …Open this footnote Close Notably, this paean to constitutional principles by implication was penned by Justice Thomas, a vocal adherent to constitutional textualism.

Together, these cases illustrate a few principles. In areas where the Constitution creates federal primacy, whether by specific grant or by underlying purpose, there is no presumption against preemption. Instead, state authority is often preempted by federal regulation of the same subject, even though the state law does not conflict with federal law. Further, an implied purpose to preserve federal discretion or uniformity in a field can prevent entry of state law into the field. Nor is a specific federal statute necessary; rather, federal common law, the legal principles formed by federal official actions in the absence of authoritative text, 48Open this footnote Close this footnote 48 Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. Chi. L. Rev. 1, 5 (1985) (defining “federal common law” as “any federal rule of decision that is not mandated on the face of some authoritative federal text—whether or not that rule can be described as the product of ‘interpretation’ in either a conventional or an unconventional sense”);Martha A. Field, Source of the Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 881, 890 (1986) …Open this footnote Close also has a preemptive effect. Disregarding these principles undermines not only congressional intent but also the constitutional design.

II. The Constitution and Preemption in Indian Affairs

Indian Affairs is one of the fields that the Constitution commits to federal supremacy.

As Gregory Ablavsky, 49Open this footnote Close this footnote 49 See Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L. J. 1012, 1019-20 (2015); Gregory Ablavsky, The Savage Constitution, 63 Duke L.J. 999, 1002 (2014). …Open this footnote Close Tanner Allread, 50Open this footnote Close this footnote 50 See Allread, Indian Removal, supra note 14, at 547; Gregory Ablavsky & W. Tanner Allread, We The (Native) People?: How Indigenous Peoples Debated the U.S. Constitution, 123 Colum. L. Rev. 243, 252 (2023). …Open this footnote Close and others 51Open this footnote Close this footnote 51 See Robert N. Clinton, The Dormant Indian Commerce Clause, 27 Conn. L. Rev. 1055, 1057 (1995); Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope and Limitations, 143 U. Pa. L. Rev. 195, 200-02 (1984); Richard D. Pomp, The Unfulfilled Promise of the Indian Commerce Clause and State Taxations, 63 Tax Law. 897, 932-40 (2010). …Open this footnote Close have examined, this commitment comes from constitutional text, history, and design. Exercise of state authority threatened the security and solemn commitments of the new nation. 52Open this footnote Close this footnote 52 See, e.g., Report from Secretary of War Henry Knox to President George Washington (June 15, 1789), in 4 Am. State Papers 13 (1832) (stating that to dispossess Indians without their consent “would be a gross violation of the fundamental laws of nature, and of that distributive justice which is the glory of a nation,” and “the finances of the United States would not at present admit of the operation”); Colin G. Calloway, The Indian World of George Washington 293 (2018) (describing the new nation as “virtually bankrupt” with $40 million dollars in debt); 1 Cohen’s Handbook of Federal Indian Law § 2.03[2] (discussing state-federal conflicts in period leading to the Constitution). …Open this footnote Close The founders therefore deliberately endowed primary and exclusive authority in the federal government. 53Open this footnote Close this footnote 53 See Ablavsky, The Savage Constitution, supra note 49, at 1038-50. …Open this footnote Close This need for primary and exclusive authority shaped not only the limited provisions referring directly to Indian tribes (the Apportionment 54Open this footnote Close this footnote 54 U.S. Const. art. I, § 2, cl. 3 (excluding “Indians not taxed” from apportionment of Representatives and taxes). …Open this footnote Close and Commerce Clauses), 55Open this footnote Close this footnote 55 U.S. Const. art. I, § 8, cl. 3 (providing Congress with power to regulate commerce with the Indian tribes). …Open this footnote Close but also the War Powers, Treaty, Compact, Property, and Supremacy Clauses, and indeed the entire vision of federal authority that the Constitution embodied. 56Open this footnote Close this footnote 56 Ablavsky, The Savage Constitution, supra note 49, at 1038-50. …Open this footnote Close

This primacy is closely linked to federal primacy in Foreign Affairs. As state violations of treaties with Indian tribes threatened the security of the new nation, 57Open this footnote Close this footnote 57 See, e.g., George Washington, Address to the United States Senate (Aug. 22, 1789), in 1 Annals of Cong. 65-66 (Joseph Gales ed. 1834) (stating that the “fate of the Southern States” depended on a diplomatic resolution to their conflicts with the tribes). …Open this footnote Close so too did individual state violations of its treaties with European nations. 58Open this footnote Close this footnote 58 David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U. L. Rev. 932, 955 (2010) (describing U.S. concern that state’s “treaty violations were endangering the states’ reputation in the world—and therefore the viability of independence . . . . European diplomats made this clear in countless communications.”) …Open this footnote Close As state refusal to obey federal mandates weakened the federal ability to negotiate treaties with tribes, 59Open this footnote Close this footnote 59 Ablavsky & Allread, supra note 50, at 266-67 (discussing Native negotiators’ discussion of state treaty violations as evidence that the U.S. was not sincere in or could not keep its promises). …Open this footnote Close state recalcitrance undermined its ability to negotiate the commercial treaties it needed to function in the world market. 60Open this footnote Close this footnote 60 Golove & Hulsebosch, supra note 58, at 957. …Open this footnote Close In both tribal and foreign affairs, moreover, apparent adherence to the law of nations was key to establishing the United States as a legitimate member of the nations of the world. 61Open this footnote Close this footnote 61 Compare Ablavsky, Beyond the Indian Commerce Clause, supra note 49, at 1061 (describing the need for American officials “to articulate legal theories of Native status that European diplomats would acknowledge”), with Golove & Hulsebosch, supra note 58, at 935-36 (describing the importance to the Founders in establishing the United States “as a ‘civilized state’ worthy of equal respect in the international community” and the dependence of that respect on whether it would “comply with its obligations under treaties and the law of nations”). …Open this footnote Close It is therefore unsurprising that federal primacy shapes preemption in both fields.

Of course states did not always accept federal primacy in Indian Affairs. When state resistance was tested in Worcester v. Georgia, however, the Supreme Court resoundingly affirmed that under the Constitution, the federal government had broad power in Indian Affairs, and the states had none. 62Open this footnote Close this footnote 62 31 U.S. 515, 561 (1832). …Open this footnote Close Pointing to the War, Treaty, and Commerce Clause powers, Worcester announced that “the whole intercourse between the United States and [Cherokee] nation, is, by our constitution and laws, vested in the government of the United States.” 63Open this footnote Close this footnote 63 Id.; see also Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 200 (1984) (“[T]he same powers that sufficed to give the federal government a free rein in the inter-national arena were viewed as sufficient to enable the new government to deal adequately with the Indian tribes.”). …Open this footnote Close Therefore Georgia’s actions sentencing White missionary Samuel Worcester for entering Cherokee country without swearing an oath of loyalty to the state were void, because they “interfered forcibly” with tribal relations, “the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the union.” 64Open this footnote Close this footnote 64 Worcester, 31 U.S. at 561. …Open this footnote Close

Although the statutes and policies shifted over the next centuries, the recognition of constitutional supremacy of the federal government has remained. As recently as 2023, in Haaland v. Brackeen, Supreme Court declared that “[o]ur cases leave little doubt that Congress’s power in [Indian Affairs] is muscular, superseding both tribal and state authority.” 65Open this footnote Close this footnote 65 Haaland v. Brackeen, 143 S. Ct. 1609, 1627 (2023); see also McGirt v. Oklahoma, 140 S. Ct. 2452, 2462 (2020) (“[S]ignificant constitutional authority when it comes to tribal relations . . . belongs to Congress alone;” state interference with those relations would “be at odds with the Constitution.”). …Open this footnote Close The Brackeen Court traced the Indian Affairs power to “multiple sources,” including the Indian Commerce Clause, the Treaty Clause, as well as “principles inherent in the Constitution’s structure” and the “trust relationship between the United States and the Indian people.” 66Open this footnote Close this footnote 66 Brackeen, 143 S. Ct. at 1627-28 (quoting United States v. Mitchell, 463 U.S. 206, 225 (1983)). …Open this footnote Close The Court also affirmed the distinct preemptive power of the Constitution in Indian Affairs, noting that “[w]hile under the Interstate Commerce Clause, States retain ‘some authority’ over trade,” under the Indian Commerce Clause “virtually all authority over Indian commerce and Indian tribes’ lies with the Federal Government.” 67Open this footnote Close this footnote 67 Brackeen, 143 S. Ct. at 1628 (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 62 (1996)). …Open this footnote Close

This constitutional design has also generated a rich body of federal common law protecting tribal sovereignty against state intrusion. 68Open this footnote Close this footnote 68 See, e.g., United States v. Lara, 541 U.S. 193, 205-206 (2004) (noting that “‘Indian law’ draws principally upon the treaties drawn and executed by the Executive Branch and legislation passed by Congress,” which “form the backdrop for the intricate web of judicially made Indian law” (quoting Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206 (1978))); County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 235 (1985) (“Numerous decisions of this Court prior to Oneida I recognized at least implicitly that Indians have a federal common-law right to sue to enforce their aboriginal land rights.”); Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 672-74 (1974) (holding that “absent federal statutory guidance, the governing rule of decision” for the tribal land claims against the states “would be fashioned by the federal court in the mode of the common law”); United States v. Quiver, 241 U.S. 602, 603-04 (1916) (relying on “the settled policy of Congress” that “personal and domestic relations” between Native people were “to be dealt with, according to their tribal customs and laws” to hold that despite the letter of a federal statute, the United States had no jurisdiction to prosecute adultery between tribal members); Fellows v. Blacksmith, 60 U.S. 366, 371 (1856) (relying on the “usage and practice of the Government” to hold that despite federal laws and treaties transferring certain Seneca lands to private land companies, only the United States, and not the private grantees, could eject Seneca landholders from their land); Worcester v. Georgia, 31 U.S. 515, 542-49 (1832) (relying on a historical backdrop of British and U.S. treatymaking and executive and legislative action to understand the meaning of treaties with the Cherokee Nation). …Open this footnote Close This common law emerges from the many treaties guaranteeing federal protection for tribal sovereignty as well as generations of congressional enactments and executive actions. Congress affirmed this common law principle in the twentieth-century statutes, most notably Public Law 280, that granted Indian country jurisdiction to certain states, implicitly acknowledging state jurisdiction did not exist without congressional grant. And the Supreme Court recognized this acknowledgement, using federal grants of jurisdiction as evidence that state jurisdiction did not exist in areas not subject to the grants. 69Open this footnote Close this footnote 69 Williams v. Lee, 358 U.S. 217, 221 (1959) (citing Aug. 15, 1953, ch. 505, 67 Stat. 588, also known as Public Law 280, as evidence that “when Congress has wished the States to exercise this power it has expressly granted them the jurisdiction which Worcester v. State of Georgia had denied”); cf. McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 177 (1973) (“[S]tatutes authorizing States to assert tax jurisdiction over reservations in special situations are explicable only if Congress assumed that the States lacked the power to impose the taxes without special authorization.”). …Open this footnote Close Since the 1970s, Congress and the Executive have added to the strength of this common law principle with scores of statutes and regulations explicitly affirming the federal commitment to tribal self-determination and autonomy.

As I examine in more detail elsewhere, 70Open this footnote Close this footnote 70 Berger, supra note 15, at 28-39. …Open this footnote Close although modern Indian Affairs preemption cases do not explicitly discuss the ways the constitutional design shifts the preemption inquiry, they clearly apply it. These cases agree that “questions of pre-emption . . . are not resolved by reference to standards of pre-emption that have developed in other areas of the law,” and that “federal pre-emption is not limited to cases in which Congress has expressly . . . pre-empted the state activity.” 71Open this footnote Close this footnote 71 See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 176-77 (1989); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980) (“Tribal reservations are not States, and the differences in the form and nature of their sovereignty make it treacherous to import to one notions of pre-emption that are properly applied to the other.”). …Open this footnote Close The Court therefore has repeatedly found preemption in the absence of direct conflict with federal laws. Rather where Congress has acted in a field, as it did in regulating trade with Indians, 72Open this footnote Close this footnote 72 Cent. Mach. Co. v. Arizona State Tax Comm’n, 448 U.S. 160, 164-165 (1980) (finding Indian trader statutes blocked state tax on non-Indian selling goods to tribe); Warren Trading Post Co. v. Arizona State Tax Comm’n, 380 U.S. 685, 690-91 (1965) (finding statutes blocked tax on non-Indian trader selling goods to Navajos on the reservation). …Open this footnote Close the timber industry, 73Open this footnote Close this footnote 73 Bracker, 448 U.S. at 151. …Open this footnote Close and education, 74Open this footnote Close this footnote 74 Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue, 458 U.S. 832, 846-47 (1982) (finding tax on non-Indian contractor building school for Indians could interfere with federal Indian education goals by marginally raising cost of constructing school). …Open this footnote Close the Court found state authority that touched on that field preempted. In other cases, the Court found state authority preempted without any federal statutes or regulations on the subject, as it did in cases involving child custody, 75Open this footnote Close this footnote 75 Fisher v. District Court, 424 U.S. 382, 388, 391 (1976) (rejecting state jurisdiction over adoption case involving tribal citizens on their reservation). …Open this footnote Close  non-Indian participation in tribal hunting and fishing, 76Open this footnote Close this footnote 76 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 325 (1983) (holding state hunting laws preempted by conflict with tribal hunting business established with federal support). In Mescalero Apache, the Court pointed to the Lacey Act, which makes it illegal to “to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law,” 16 U.S.C. § 3372(a)(1) (2008), but the case did not concern importation or violation of tribal laws, but rather whether stricter state laws could be applied. …Open this footnote Close and gambling businesses created with federal funding. 77Open this footnote Close this footnote 77 California v. Cabazon Band of Mission Indians, 480 U.S. 202, 218-19, 221–22 (1987) (holding state law preempted by broad laws encouraging tribal economic development and federal actions financing tribal bingo enterprise). …Open this footnote Close In all of these cases, the Court applies a presumption of preemption where state authority would conflict with federal common law or purposes broadly read.

These decisions do not reflect an idiosyncratic approach reserved to Indian Affairs but rather the “ordinary principles of preemption” 78Open this footnote Close this footnote 78 Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2494 (2022). …Open this footnote Close appropriate to a field that the Constitution commits to federal primacy.

III. Castro-Huerta’s Violation of Constitutional Commitments

Castro-Huerta utterly violated the rules of preemption that the Constitution dictates. Given federal constitutional primacy in Indian Affairs, the General Crimes Act’s assertion of federal jurisdiction, combined with congressional intent to exclude state jurisdiction, and the common law understanding that states had no jurisdiction over crimes involving Indians on reservations, mandated a holding that state jurisdiction was preempted. Instead, the Court ignored this “mountain of statutes and precedents” 79Open this footnote Close this footnote 79 Id. at 2521 (Gorsuch, J., dissenting). …Open this footnote Close to hold that state authority was not preempted because the “text of the General Crimes Act says no such thing.” 80Open this footnote Close this footnote 80 Id. at 2496 …Open this footnote Close This section first provides some background on the case, then shows how the decision undermines constitutional preemption principles.

The facts of the case suggest that state jurisdiction is not an effective response to the suffering of Native people. Oklahoma first prosecuted Victor Manuel Castro-Huerta in 2015, before McGirt v. Oklahoma 81Open this footnote Close this footnote 81 McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). …Open this footnote Close  held that Tulsa, where he lived, remained part of the Muscogee (Creek) Reservation. 82Open this footnote Close this footnote 82 Castro-Huerta, 142 S. Ct. at 2509-10. …Open this footnote Close Mr. Castro-Huerta was married to Christina Ann Calhoun, a Cherokee citizen, and was stepfather to her two children, including A.C., a five-year-old Cherokee citizen with severe disabilities, including cerebral palsy, developmental disabilities, blindness, and problems eating and swallowing that required her to be fed five cans of Pediasure a day. 83Open this footnote Close this footnote 83 Id. (noting that A.C. had cerebral palsy and was legally blind); Transcript of Record at 266, 280, Oklahoma v. Castro Huerta, Case No. CF 15-6478 (Tulsa D. Ct., Oct. 4, 2017) (“Trial Transcript”). …Open this footnote Close Castro-Huerta worked two jobs to support Calhoun’s three children, his two children with Calhoun, and his two boys from another marriage. 84Open this footnote Close this footnote 84 Trial Transcript at 278-82. …Open this footnote Close

The State of Oklahoma had received referrals about possible neglect of another child in the home as early as 2012, and had conducted an investigation in 2013 when that child died. 85Open this footnote Close this footnote 85 Id. at 519. …Open this footnote Close Beginning in 2013, A.C. was assigned a social worker because of concerns about her care, with multiple additional referrals between 2014 and 2015. 86Open this footnote Close this footnote 86 Id. at 265, 519. …Open this footnote Close In November 2015, Calhoun and Castro-Huerta went to the hospital so Calhoun could give birth to their third child, leaving A.C. and the other children in the care of their neighbor and Calhoun’s sister. 87Open this footnote Close this footnote 87 Id. at 272-73. …Open this footnote Close When they brought the new baby home, Calhoun’s sister told them A.C. was in serious trouble, and Castro-Huerta and Calhoun rushed her to the emergency room. 88Open this footnote Close this footnote 88 See id. at 283. …Open this footnote Close When they get there, the doctors found that A.C. was filthy and starving, weighing even less than when she was first assigned a social worker two years earlier. 89Open this footnote Close this footnote 89 Id. at 276, 283. …Open this footnote Close

The state then finally addressed A.C.’s suffering by removing her and charging Calhoun and Castro-Huerta with criminal neglect. Calhoun pled guilty, but Castro-Huerta went to trial, arguing that given his constant work and little education (born in Mexico, he left school to work when he was twelve), he wasn’t aware of A.C.’s needs. 90Open this footnote Close this footnote 90 Id. at 278-83. …Open this footnote Close He was convicted and sentenced to thirty-five years in prison. 91Open this footnote Close this footnote 91 Castro-Huerta, 142 S. Ct. at 2491. …Open this footnote Close After the Court decided McGirt, he filed a habeas petition arguing that the state lacked jurisdiction over him for a crime against a tribal citizen, and the Oklahoma courts agreed. 92Open this footnote Close this footnote 92 Id. at 2492. …Open this footnote Close His state conviction was vacated and he was quickly sentenced to prison in federal court. But his case became one of many in which the state sought certiorari as part of a continuing effort to get McGirt overturned.

This background suggests that state jurisdiction is not a panacea to victimization of Native people. A.C. suffered for years and her brother died while Oklahoma was aware of problems in the home. Although the Court held that state jurisdiction in these cases would not infringe tribal self-government because tribes lack jurisdiction over most crimes by non-Indians, 93Open this footnote Close this footnote 93 Id. at 2501. Ironically, as the case was pending, Congress restored tribal jurisdiction over non-Indians committing crimes against Indian children similar to those at issue in Castro-Huerta. See Violence Against Women Reauthorization Act of 2022, Pub. L. 117-103, 136 Stat. 49, 899 (codified as amended at 25 U.S.C. § 1304) (VAWA 2022). …Open this footnote Close decades of research shows that state criminal jurisdiction does not protect Native victims and undermines the tribal and federal institutions that do. 94Open this footnote Close this footnote 94 Brief for National Indigenous Women’s Resource Center et al. as Amici Curiae Supporting Respondents at 25-30, Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022) (No. 21-429) [hereinafter NIWRC Castro-Huerta brief]; Brief for National Congress of American Indians as Amici Curiae supporting Respondents at 18-26, Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022) (No. 21-429) [hereinafter NCAI Castro-Huerta brief]. …Open this footnote Close As Justice Brandeis recognized long ago, “Responsibility is the great developer,” and dividing responsiblity tends to “emasculate and demoralize.” 95Open this footnote Close this footnote 95 St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 92 (1936) (Brandeis, J., concurring). …Open this footnote Close In Indian country, dividing authority among state, federal, and tribal governments can lead to none accepting full authority. 96Open this footnote Close this footnote 96 See Regina Branton, Kimi King & Justin Walsh, Criminal Justice in Indian Country: Examining Declination Rates of Tribal Cases, 103 Soc. Sci. Q. 69, 73 (2022) (noting that in Indian country there is “greater risk for policy fragmentation because there are more authorities that are ‘in the mix’”). …Open this footnote Close Concurrent jurisdiction under Public Law 280 (which grants certain states full criminal jurisdiction in Indian country) has proved “a chance to scapegoat and pass the buck indefinitely on unsolved cases.” 97Open this footnote Close this footnote 97 .Sovereign Bodies Institute, To’ Kee Skuy’ Soo Ney-Wo-Chek’—I Will See You Again in a Good Way, Progress Report 62 (July 2020), https://www.sovereign-bodies.org/_files/ugd/6b33f7_c7031acf738f4f05a0bd46bf96486e58.pdf. …Open this footnote Close  One comprehensive study found that interviewees at reservations where states retroceded 280 jurisdiction reported decreased crime, increased reporting, and stronger tribal presence and commitment to discouraging criminal behavior. 98Open this footnote Close this footnote 98 .Carole Goldberg et al., Final Report: Law Enforcement and Criminal Justice Under Public Law 280 456-57 (2007), perma.cc/9TU2-9Q4P (archived May 6, 2025). …Open this footnote Close

Native people, moreover, are particularly vulnerable to police abuses: one study found they are the ethnic group most likely to be shot by police, 99Open this footnote Close this footnote 99 Elisa Hansen, The Forgotten Minority in Police Shootings, CNN (Nov. 13, 2017, 2:15 PM EST), https://perma.cc/6Y58-VEDV (reporting that between 1995 and 2015, Native Americans were 12% more likely than Black Americans and three times more likely than White Americans to be shot by police). …Open this footnote Close while another found that Native women were 38 times more likely than White women to suffer fatal encounters with police, and Native men were 14 times more likely than White men. 100Open this footnote Close this footnote 100 .Matthew Harvey, Fatal Encounters Between Native Americans and the Police 14 (2020), https://perma.cc/M6B5-72LU. Fatal encounters were more than ten times higher per capita outside “tribal statistical areas” (a rough proxy for Indian country) than within them. Id. at 18. They were also about 70% higher in tribal statistical areas subject to Pub. L. 280 than they were in tribal areas in non-Pub. L. 280 states. Id. …Open this footnote Close  As a result, Indigenous people are often unwilling to report crimes or work with state law enforcement. As one woman from Wisconsin reported, “I don’t want that to happen to me, for them to hit me, or kick me. I won’t go to the police. I won’t talk to ‘em, cause ya’ just don’t know where that’s gonna go.” 101Open this footnote Close this footnote 101 Barbara Perry, Impacts of Disparate Policing in Indian Country, 19 Policing & Soc. 263, 273 (2009). …Open this footnote Close

But while the potential impact of Castro-Huerta’s holding is significant, its potential to undermine the constitutionally appropriate rules of preemption would be even more so. The remainder of this part explains how the decision violated those rules.

First, the Court applied an analysis that seemed to require direct conflict with federal statutory text unless state authority would infringe on tribal self-government. 102Open this footnote Close this footnote 102 Castro-Huerta, 597 U.S. at 638. …Open this footnote Close This violates the rule appropriate to areas where the Constitution makes the federal interest dominant such that “[s]tates may not enter, in any respect, an area the Federal Government has reserved for itself.” 103Open this footnote Close this footnote 103 Arizona v. United States, 567 U.S. 387, 402 (2012); see also Hines v. Davidovitz, 312 U.S. 52, 74 (1941) (federal alien registration act preempted Pennsylvania alien registration act). …Open this footnote Close Since the founding, the federal Trade and Intercourse Acts, which reached their current form with the General Crimes Act in 1834, have reserved to the federal government the power to prosecute crimes by non-Indians against Indians in Indian country. 104Open this footnote Close this footnote 104 See Berger, Preempting Colonialism at 18. …Open this footnote Close

The history of the General Crimes Act confirms this exclusive effect. Although the text of the act does not expressly exclude state jurisdiction, it would have been understood to do so under the nineteenth century understanding that federal and state authority were only exclusive and could not be concurrent. 105Open this footnote Close this footnote 105 Ablavsky, Too Much History at 322; Berger, Preempting Colonialism at 10; Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767, 785-86 (1994) (explaining exclusive sovereignty understanding of the nineteenth century). …Open this footnote Close And although concurrent jurisdiction is now accepted, Congress and the Executive have continued to treat the General Crimes Act power as occupying the field. Beginning in 1940, Congress enacted multiple statutes expressly giving certain states jurisdiction over “offenses committed by or against Indians,” 106Open this footnote Close this footnote 106 Mohegan Nation of Connecticut Land Claims Settlement Act of 1994, Pub. L. No. 103-377, § 6(a), 108 Stat. 3501, 3505 (emphasis added); see, e.g., Seminole Indian Land Claims Settlement Act of 1987, Pub. L. No. 100-228, § 6(d)(1), 101 Stat. 1556, 1560 ; Florida Indian Land Claims Settlement Act of 1982, Pub. L. No. 97-399, § 8(b)(2)(A), 96 Stat. 2012, 2015 (codified at ; Act of Aug. 15, 1953 (also known as Public Law 280), ch. 505, § 2(a), §§ 2(a), 6, 67 Stat. 588, 588, 590 (codified as amended at 18 U.S.C. §§ 1162, 1360(nt)) (grant to five states; authorization for other states to accept jurisdiction); Act of July 2, 1948, ch. 809, 62 Stat. 1224 (codified at 25 U.S.C. § 232) (grant to New York); Act of June 30, 1948, ch. 758, 62 Stat. 1161 (granting Iowa jurisdiction over the Sac and Fox Reservation); Act of June 25, 1948, ch. 645, 62 Stat. 827, 827 (codified at 18 U.S.C. § 3243) (reenacting Kansas authorization); Act of May 31, 1946, ch. 279, 60 Stat. 229 (granting North Dakota jurisdiction over the Spirit Lake Reservation, formerly known as the Devils Lake Reservation); Act of June 8, 1940, ch. 276, 54 Stat. 249 (initially granting Kansas jurisdiction). …Open this footnote Close reflecting its understanding that the General Crimes Act otherwise occupied the field. Congress even enacted one such statute on June 25, 1948—the same day it reenacted the General Crimes Act. 107Open this footnote Close this footnote 107 See Act of June 25, 1948, ch. 645, 62 Stat. 827, 827 (codified at 18 U.S.C. § 3243) (reenacting grant of criminal jurisdiction to Kansas); Act of June 25, 1948, ch. 645, 62 Stat. 757 (codified at 18 U.S.C. § 1152) (reenacting General Crimes Act). …Open this footnote Close

Second, by providing state prosecutors with the ability to prosecute these crimes, the decision undermines federal prosecutorial discretion, a key value in the American criminal justice system. 108Open this footnote Close this footnote 108 Kevin Washburn, American Indians, Crime, and the Law, 104 Mich. L. Rev. 709, 725-27 (2006) (discussing value the American criminal system places on prosecutorial discretion).s …Open this footnote Close As in cases invalidating state laws because they added penalties or limited executive discretion to create a “comprehensive strategy” in foreign relations, 109Open this footnote Close this footnote 109 Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000) (invalidating Massachusetts law banning contracts with those doing business with Burma because it limited the President’s discretion to approve or remove further sanctions); American Ins. Ass’n v. Garamendi, 539 U.S. 396, 401 (2003) (invalidating California Holocaust Victims Compensation law because it created restrictions beyond those in the President’s agreements with Germany). …Open this footnote Close these decisions prevent the Federal Executive from determining the most effective approach to victimization of Indian people. 110Open this footnote Close this footnote 110 The Supreme Court has reached conflicting conclusions on the preemptive effect of prosecutorial discretion. Compare Arizona v. United States, 567 U.S. 387, 408 (2012) (holding Arizona law criminalizing failure to comply with federal alien registration law was preempted in part because of its potential conflict with federal immigration enforcement priorities), with Kansas v. Garcia, 140 S. Ct. 791, 806 (2020) (holding Kansas law punishing use of fake social security numbers as fraud was not preempted, and stating that federal criminal law enforcement priorities were not enough to preempt state law). This Essay does not argue that interference with prosecutorial discretion alone would preempt state jurisdiction, but rather considers its impact on the federal ability to create a comprehensive strategy for addressing crime in Indian country. Notably, moreover, while criminal law enforcement outside Indian country is primarily by the states, that has never been the case with respect to enforcement in Indian country, where tribes and the federal government have historically had the primary and often exclusive role. See United States v. Kagama, 118 U.S. 375, 384 (1886) (upholding federal criminal jurisdiction based on historic federal “duty of protection” but noting that “the people of the states where [Indians] are found are often their deadliest enemies.”); Donnelly v. United States, 228 U.S. 243, 272 (1913) (holding principle of Kagama applied “perhaps a fortiori—with respect to crimes committed by white men against the persons or property of the Indian tribes”). …Open this footnote Close

Finally, state criminal jurisdiction violates federal common law and federal purposes reflected in myriad federal statutes. Before Castro-Huerta, federal common law made clear that states lacked criminal jurisdiction over crimes by non-Indians against Indians without federal consent. 111Open this footnote Close this footnote 111 Williams v. Lee, 358 U.S. 217, 220 (1959) (“[I]f [a] crime was by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress has remained exclusive.”); Williams v. Arizona, 327 U.S. 711, 714 (1946) ( “[T]he laws and courts of the United States, rather than those of Arizona, have jurisdiction over offenses committed there, as in this case, by one who is not an Indian against one who is an Indian.”). …Open this footnote Close For decades, moreover, federal laws have reflected a firm congressional purpose to limit state jurisdiction without tribal consent and promote tribes as the primary source of criminal jurisdiction in Indian country. In 1968, for example, Congress prohibited future extensions of state jurisdiction without tribal consent and permitted states to retrocede the jurisdiction Congress had previously granted. 112Open this footnote Close this footnote 112 Act of April 11, 1968, Pub. L. No. 90-284, Title IV, §§ 401, 403, 82 Stat. 73, 78-79 (codified at 25 U.S.C. § 1321). …Open this footnote Close In 1990, 2010, 2013, and 2022, Congress expanded or affirmed tribal criminal jurisdiction in Indian country. 113Open this footnote Close this footnote 113 Violence Against Women Reauthorization Act of 2022, Pub. L. No. 117-103, 136 Stat. 49, 840-46 (codified at 25 U.S.C. § 1304) (creating tribal criminal jurisdiction over non-Indian sexual violence, child violence, and obstruction of tribal justice officials); Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, § 904, 127 Stat. 54, 120-21 (codified at 25 U.S.C. § 1304) (creating tribal jurisdiction over non-Indians committing domestic violence against Indians); Tribal Law and Order Act of 2010, Pub. L. No. 111-211, Title II, §§ 202, 234, Stat. 2258, 2262, 2279-2282 (expanding tribal sentencing authority) (codified at 25 U.S.C. § 1302); Act of Nov. 5, 1990, Pub. L. No. 101-511, Title VIII, § 8077(b)-(c), 104 Stat. 1856, 1892-93 (codified as amended at 25 U.S.C. § 1301(4)) (affirming tribal criminal jurisdiction over crimes by non-member Indians). …Open this footnote Close In enacting these statutes, Congress recognized that tribal governments were the “most appropriate institutions” for maintaining law and order in Indian country, 114Open this footnote Close this footnote 114 Tribal Law and Order Act of 2010, Pub. L. No. 111-211, Title II, § 202(a)(2)(B), Stat. 2258, 2262 (codified at 25 U.S.C. § 2801(nt). …Open this footnote Close and that tribes “located in States with concurrent authority to prosecute crimes in Indian country . . . face unique public safety challenges.” 115Open this footnote Close this footnote 115 Violence Against Women Reauthorization Act of 2022, Pub. L. No. 117-103, § 801(a)(14), 136 Stat. 49, 897 (codified at 25 U.S.C. § 1304(nt)). …Open this footnote Close

In undermining these federal purposes, contravening federal common law, limiting federal discretion, and welcoming state authority into a field the United States has reserved for itself, Castro-Huerta misconstrued not just a federal statute but the U.S. Constitution. It treated the preemption inquiry as one governed by a presumption of state authority, rather than one appropriate to areas where the Constitution deliberately creates federal primacy. In so doing, it violated a constitutional understanding born during the Founding that has persevered—despite challenges and shifts—for over two hundred years.

IV. Conclusion: Curing Castro-Huerta’s Constitutional Mistakes

Oklahoma officials’ illegal romp in Castro-Huerta’s wake shows the devastation extension of its mistakes could cause. In Indian Affairs, preemption is what creates the space for tribal self-determination, allowing Indigenous communities to practice their traditions, develop their economies, and protect their citizens. 116Open this footnote Close this footnote 116 Preempting Colonialism, supra note 15, at 2. …Open this footnote Close But because Castro-Huerta claimed to rely on rather than overrule foundational precedents in the field, its mistakes can be cured in future cases.

Outside its specific holding, Castro-Huerta did not claim to break new ground on preemption in Indian Affairs. The Castro-Huerta majority did not purport to overrule any previous decision, and even claimed to apply the core precedents on Indian law preemption. 117Open this footnote Close this footnote 117 Oklahoma v. Castro-Huerta, 142 S.Ct. 2486, 2500-01 (2022) (citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-43 (1980); and New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333-35 (1983)). …Open this footnote Close The majority agreed, for example, that tribal self-government could displace state authority in the absence of federal statutory law. 118Open this footnote Close this footnote 118 2486 S.Ct. at 2494 (stating state jurisdiction is preempted “(i) by federal law under ordinary principles of federal preemption, or (ii) when the exercise of state jurisdiction would unlawfully infringe on tribal self-government”). …Open this footnote Close As Justice Gorsuch noted in dissent, the majority also left “undisturbed the ancient rule that States cannot prosecute crimes by Native Americans on tribal lands without clear congressional authorization,” and left open other arguments about the impact of other statutes or treaties. 119Open this footnote Close this footnote 119 Id at 2525-26 (Gorsuch, J., dissenting). …Open this footnote Close Although the majority declared that Worcester v. Georgia’s “understanding of Indian country as separate from the State” had been “abandoned,” 120Open this footnote Close this footnote 120 Id. at 2502 (majority op.). …Open this footnote Close  the Supreme Court recognized that abandonment long ago, in the same decisions which reaffirmed the general principle excluding state authority. 121Open this footnote Close this footnote 121 See, e.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141, 137-38 (1980) (agreeing that “‘[l]ong ago the Court departed from [Worcester’s] view that ‘the laws of [a State] can have no force’ within reservation boundaries” in opinion holding state could not tax non-Indian contractor working for tribal business (citing Worcester v. Georgia, 31 U.S. 515, 596 (1832)); McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 170-71 (1973) (noting that the Worcester “doctrine has undergone considerable evolution in response to changed circumstances” while agreeing that “State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply” (quoting U.S. Dept. of the Interior, Federal Indian Law 845 (1958)); Williams v. Lee, 358 U.S. 217, 219-20, 223 (1959) (discussing modification of Worcester while holding that state had no jurisdiction over dispute by non-Indian against Navajo couple arising on Navajo Reservation). …Open this footnote Close That general principle, although transformed, has survived for centuries, and has contributed to important recent gains in de facto tribal self-determination. Nothing in Castro-Huerta requires abrogation of that principle or reversal of those gains.

Avoiding Castro-Huerta’s constitutional mistakes in other cases, therefore, does not require overruling the decision. Instead, it requires understanding the constitutional origins of the preemption inquiry, and why it leads to different analysis in Indian Affairs just as it does in other areas where federal authority is plenary and state authority is limited. In these fields, express preemption is not required, entry into a field excludes concurrent state authority, federal common law may rule supreme, and federal purposes and discretion must be protected. May courts faithful to the Constitution recognize and apply these principles. At stake is not just constitutional federalism but the rights of this land’s first sovereigns.

* Allan D. Vestal Chair, University of Iowa-College of Law. Thanks to Hope Metcalf, Tanner Allread, Dan Lewerenz, and Elizabeth Reese for helpful questions and comments and to Carson Smith, Katie Leia Garcia, and the rest of the Stanford Law Review team for excellent work on the symposium.