Ablavsky, "Too Much History: Castro Huerta and the Problem of Change in Indian Law"

Gregory Ablavsky (Stanford Law School) has posted "Too Much History: Castro Huerta and the Problem of Change in Indian Law," Supreme Court Review (2022). The abstract:

The Supreme Court’s decision last Term in Castro-Huerta v. Oklahoma
dramatically rewrote the rules of criminal jurisdiction in federal
Indian law. For the first time since 1882, the Court judicially expanded
the scope of state criminal jurisdiction in Indian country, finding
that states hold jurisdiction over Indian-on-non-Indian crime
concurrently with the federal government. In reaching this conclusion,
the Court exemplified the subjectivism that scholars have criticized in
the Court’s Indian law jurisprudence for decades. The opinion
distinguished or cast aside at least six prior decisions where the Court
had seemingly reached the opposite conclusion, as well as concluding
that the Court had already substantially limited the Court’s
foundational holding in Worcester v. Georgia (1833) that Indian country
ordinarily lies outside state authority.

Building on these
earlier critiques, this Article uses Castro-Huerta to examine a less
explored flaw in the Court’s Indian law rulings—what I call the problem
of “too much history.” In Indian law, judges and litigants must make
sense of over two centuries of jurisdictional debates, recorded largely
not in statutes or constitutional provisions but in dozens of shifting
Supreme Court decisions. The key question in Castro-Huerta, and the core
of the dispute between majority and dissent, was change--how the law on
state jurisdiction in Indian country had shifted over time. But the
sheer mass of history makes it hard for the Justices to identify
legitimate legal change in Indian law.

This conundrum leads to
two broad types of judicial use of history in Indian law. “Good”
history decisions, epitomized by this Term’s decision in Ysleta del Sur
Pueblo v. Texas, employ specific context to examine narrowly defined
legal questions. By contrast, “bad” history opinions, exemplified by
Castro-Huerta, turn to the past as an independent source of law, ask
broad, unanswerable questions of it, and provide no clear way to assess
the inevitable heap of conflicting evidence.

Having laid out this
challenge, the Article reexamines the question of the specific
historical change at the core at Castro-Huerta. Rather than the
majority’s narrative of abandonment and the dissent’s narrative of
continuity, I think a more accurate account of what the Court has done
with respect to state jurisdiction in Indian country is
translation—trying to make sense of older legal principles within a new
jurisprudential frame. But this approach makes the Court’s decisions in
this area especially prone to misreading and selective citation, as
Castro-Huerta underscored. 

Read on here.

-- Karen Tani