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.
Michael D.O. Rusco,
Oklahoma v. Castro-Huerta, Jurisdictional Overlap, Competitive Sovereign Erosion, and the Fundamental Freedom of Sovereign Nations,
106 Marq. L. Rev. 889
Available at: https://scholarship.law.marquette.edu/mulr/vol106/iss4/6