Michael Doran has posted "Tribal Sovereignty Preempted," forthcoming in the Brooklyn Law Review, on SSRN. Here is the abstract:
In June of 2022, the U.S. Supreme Court held in Oklahoma vs. Castro-Huerta that a state may prosecute a non-Indian for a crime committed against an Indian within Indian country. That decision effectively overruled Worcester vs. Georgia, an 1832 landmark case in which Chief Justice Marshall said that state law "can have no force" in Indian country. Although the conventional wisdom sees Castro-Huerta as a radical departure from first principles of federal Indian law, I argue that it is the natural – although deeply deplorable – next step in a long line of Supreme Court decisions expanding state governmental authority within Indian country. Additionally, this line mirrors a separate line restricting tribal governmental authority within Indian country. Through a critical examination of these decisions, I show how the Supreme Court over the last half century has systematically privileged state interests and the interests of individual non-Indians over tribal interests and that, in so doing, the Court has arrogated to itself the political function of defining tribal sovereignty. I argue that Congress should reject the Court's relentless subordination of Indian interests to non-Indian interests and reassert its role in defining and defending a robust conception of tribal sovereignty.
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