In addition to its stunning internal flaws, the United States Supreme Court’s opinion in Oklahoma v. Castro-Huerta exemplifies Indian law’s broader flaws as a jurisprudence. Castro-Huerta holds that states have concurrent criminal jurisdiction with federal and tribal governments over crimes by non-Indians against Indians on reservation lands. Justice Gorsuch deftly addresses many of the glaring internal flaws in Kavanaugh’s majority opinion, but not all. He does not dissect the hollow assertion that reservations are part of the surrounding state both geographically and politically. This cannot go unaddressed, particularly given its weak analysis, misguided use of precedent, and broader consequences.
Castro-Huerta’s holding affects the precise kind of “jurisdictional overlap” at the root of the slow erosion of tribal sovereignty over time, as first explained in a prior article. The Founders believed two governments generally cannot co-exist, i.e. overlap. They had a firm idea of what happens when jurisdictional overlap occurs: one government slowly subsumes the other over time until nothing meaningful is left, here labeled “competitive sovereign erosion.” The Founding Fathers believed this proposition so much and feared it so deeply that it played a central role in how the Constitution was written, specifically the categorical division of authority between the federal and state governments. Tribal sovereignty will continue to be vulnerable to competitive sovereign erosion until a solution is reached that results in either a respect for tribal borders, or a qualitative division of governmental authority between tribal governments, the federal government, and the states. Anything less will continue the long-term war of sovereign attrition historically experienced by tribes.
Analyzing Indian law as a competitive sovereign erosion problem of the sort contemplated by the Framers and discussing it in terms of United States federalism has additional jurisprudential and advocacy advantages. Doing so disconnects Indian law from the tortured logic exemplified by Castro used to reach anti-Indian results, and reconnects it to the intuitively fair, commonly accepted, and historically effective answers used when White cultures have had the same kinds of problems. From an advocacy perspective, competitive erosion adopts a conceptual framework and lexicon that resonates with conservatives commonly opposed to tribal sovereignty. Using competitive erosion can present tribal sovereignty in a way that persuadable conservatives can embrace.
Tribes wanting to maintain their separate existence need to overturn the assertion that reservations are part of the state, oppose practices that give the appearance of being part of state government, and push congress for legislation that will eliminate jurisdictional overlap between tribes, states, and the federal government.
