I show how this theory arose from the era of southern Indian Removal in the 1820s and 30s as states sought to claim jurisdiction over Native peoples and lands and eradicate Native sovereignty within their borders. 4/12
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I also show how the Marshall Court rejected the theory in the foundational Indian Law case of Worcester v. Georgia. But the case didn’t stop Removal or the state supremacy arguments. I argue that these arguments persisted in late 19th and early 21st century Indian Law cases. 5/12
But it wasn’t until Castro-Huerta that the state supremacy arguments finally became law as the Court stated that states have jurisdiction over all their territory, including Indian Country, and it used this principle, as well as an array of state supremacy arguments, to hold 6/12
for the first time in over 200 years, that states have criminal jurisdiction over non-Indians who commit crimes against Indians in Indian Country. And even though the case impacted federal power, its statements about state power pose a significant threat to Native nations. 7/12
Ultimately, I argue that Castro-Huerta and the state supremacy theory contradict the original understanding of the Constitution and current Indian Affairs policy, promote a false history of Indian Law, and perpetuate the racism and violence of the Removal era. 8/12
Overall, I hope this article provides a historical and legal case for why these state supremacy arguments are wrong in the context of Indian Law and spurs other scholars to consider how the Court and states are reviving long-rejected federalism arguments in many areas of the 9/12
law to constrain the power of minority communities and the rights of many Americans. I have no doubt that Native nations will continue to survive and thrive, but I hope this article contributes in some way to providing them the legal space to do it. 10/12
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