Tanner Allread on SCOTUS’ Improper Use of Indian Removal Era Analysis in Modern Day Indian Law Cases

W. Tanner Allread has published “The Specter of Indian Removal: The Persistence of State Supremacy Arguments in Federal Indian Law” in the Columbia Law Review. PDF

Abstract:

In the 2022 case of Oklahoma v. Castro-Huerta, the Supreme Court departed from one of the foundational cases in federal Indian law, Worcester v. Georgia. Chief Justice John Marshall’s 1832 opinion had dismissed state power over Indian Country. But in Castro-Huerta, the Court took precisely the kind of arguments about state power that Chief Justice Marshall rejected in Worcester and turned them into the law of the land—without any recognition of the arguments’ Indian Removal–era origins.

This Article corrects the Court’s oversight. Relying on rarely utilized archival sources, it provides a historical narrative of the development of what the Article terms the theory of state supremacy, first articulated by the southern state legislatures in the Removal Era to justify state power over Native nations and eradicate Native sovereignty. Even though Worcester rejected this theory, Supreme Court Justices and state litigants have continued to invoke its tenets in Indian law cases from the late nineteenth century to the present. Castro-Huerta, then, is just the latest and most egregious example. And the decision’s use of Removal-era arguments revives the specter of Indian Removal in the present day.

This Article reveals that the continued use of state supremacy arguments defies constitutional law and federal Indian affairs policy, produces an inaccurate history of Native nations and federal Indian law, and perpetuates the racism and violence that characterized the Removal Era. Ultimately, this Article seeks to counter future attacks on tribal sovereignty and combat the broader revival of long-rejected federalism arguments.