This essay first appeared in the July 11, 2022 Epoch Times.

The Supreme Court has been giving much attention to the law regulating American Indian affairs—particularly the law of tribal sovereignty. The court has issued four major decisions on the subject in the last three years. And in the coming term, it will decide a case testing the constitutionality of Congress’s Indian Child Welfare Act.

The court’s most recent ruling is Oklahoma v. Castro-Huerta (pdf), issued on Jun. 29. The case involved Victor Manuel Castro-Huerta, who was living illegally in this country—specifically in Tulsa, Oklahoma. Castro-Huerta criminally neglected his 5-year-old step-daughter, with horrific results. Castro-Huerta is not an Indian, but his step-daughter is a member of the Cherokee tribe.

The State of Oklahoma prosecuted Castro-Huerta, who was convicted and sentenced to 35 years in prison. The federal government also prosecuted him, resulting in a seven-year sentence.

In 2020, the Supreme Court decided that most of Tulsa lay within the confines of a never-dissolved Creek Indian reservation. (More on that below.) Castro-Huerta argued that because his victim was an Indian and the crime occurred on a reservation, only the federal or tribal courts had jurisdiction. Accepting his argument would void the Oklahoma conviction.

By a 5–4 margin, the court ruled that Oklahoma state authorities could prosecute Castro-Huerta. Justice Brett Kavanaugh wrote for the majority and Justice Neil Gorsuch for the dissent.

Kavanaugh implicitly acknowledged that treaties entered into between the U.S. government and the Creek Nation in 1835 and 1866 granted the Creeks self-government. They also excluded state jurisdiction. However, he wrote that the congressional law authorizing Oklahoma’s 1907 admission to the Union effectively repealed those treaties. Because Tulsa is within state boundaries, he wrote, the state government has jurisdiction.

The most important argument in Gorsuch’s dissent was that Oklahoma’s admission to the Union did not repeal the Creek treaties.

Other Tight Cases

McGirt v. Oklahoma (pdf), handed down in 2020, involved treaties between the U.S. government and the Creek Nation. The treaties dated to 1832–33, 1856, and 1866. They assigned to the Creeks a large reservation in what later became Oklahoma. The court ruled that the Creek reservation, although subsequently reduced in size and jurisdiction, survived Oklahoma’s admission to the Union and remains in existence today.

McGirt led to similar judicial rulings in favor of other major Oklahoma tribes: the Seminoles, Choctaws, Cherokees, and Chickasaws. Today, about 43 percent of Oklahoma is now legally “Indian country.”

Notice the fine distinction between the ruling in McGirt and the ruling in Castro-Huerta: The congressional law admitting Oklahoma into the Union did not abolish the reservation (McGirt) but it did abolish so much as prevented Oklahoma from prosecuting a non-Indian on that reservation (Castro-Huerta).

As in the Castro-Huerta case, the vote among the justices in McGirt was 5–4.

Herrera v. Wyoming (pdf), issued in 2019, involved an 1868 treaty between the U.S. government and the Crow Tribe. In an opinion by Justice Sonia Sotomayor, the court held that the treaty survived Wyoming’s entry into the Union in 1890. The court also ruled that the treaty protected Crow hunting rights in Bighorn National Forest against a contrary state law.

The vote in Herrera v. Wyoming also was 5–4.

Believe it or not, the court can be even more fractured than 5–4. In the 2019 case of Washington v. Cougar-Den (pdf), the court ruled that under the terms of an 1855 treaty with the Yakima Nation, Washington State could not tax tribal motor fuel shipments. Justice Stephen Breyer, writing for himself, Sotomayor, and Elena Kagan, voted for the tribe for one set of reasons. Gorsuch, writing for himself and Ruth Bader Ginsburg, voted for the tribe for slightly different reasons. Chief Justice John Roberts wrote for four dissenters.

Why Are These Cases So Difficult?

One reason the votes in these cases were so close is that the law of tribal sovereignty is chaotic. The Constitution features fairly clear guidelines for how the federal, state, and tribal governments should interact. But for decades now, courts and commentators have been ignoring those guidelines and making up new rules. The result has been an unpersuasive tangle untethered to the Constitution.

Here’s a good example: As I shall explain in the next installment in this two-part series, the Constitution divides power over Indian relations between (1) Congress, (2) the president, (3) the president acting in concert with two-thirds of the Senate, (4) the tribal governments, and (5) the state governments. Since 1871, however, Congress has claimed total control over all Indian affairs, squeezing out the president, the Senate, the tribal governments, and the states. In the Indian Child Welfare Act, for example, Congress claimed “plenary power over Indian affairs.”

The problem is that the Constitution rather clearly does not give Congress “plenary power over Indian affairs.” But presidents have not asserted their treaty-making authority, states and tribes usually fail to push back, and the academics and activists who write about Indian law generally are left-of-center and therefore side with Congress. Those writers propound contorted “reasons” why Congress has all the power that the Constitution actually divides up. The result is incoherence.

A good example of how the law of tribal sovereignty has become corrupted is the outsized impact of Felix Cohen’s “Handbook of Federal Indian Law.” Cohen was a lawyer in the administration of President Franklin D. Roosevelt. He wasn’t an impartial scholar. When he published the first edition of his “Handbook” in 1942, the administration’s official position—which it was promoting before the Supreme Court—was that the Constitution’s Commerce Clause granted Congress sweeping power, thereby enabling Congress to adopt FDR’s massive “New Deal” program.

So Cohen’s “Handbook” duly argued (duh!) that the Commerce Clause gave Congress absolute control over Indian affairs. In view of the nature of his employment, it isn’t astonishing that Cohen took that position. What is astonishing—and depressing—is that writers (including, alas, Justice Gorsuch) continue to treat his work as the “bible” of Indian law.

In 2004, Justice Clarence Thomas called on the Supreme Court to clarify its tribal sovereignty jurisprudence (pdf). Perhaps the court’s current interest is partly a response to that call. But clarification is impossible unless we understand the Constitution’s rules.

I’ll outline those rules in the next installment.