Advocacy Matters

The Supreme Court’s 2022 Castro-Huerta decision was wrong on the points it discussed. It was doubly wrong for a reason it ignored. But the latter error was shared because all briefs and the dissenting opinion ignored it as well. The question presented was whether a nineteenth-century federal Indian country statute provided for exclusive federal jurisdiction over interracial crimes, or for concurrent authority with states.

The Court held that the statute allowed concurrent jurisdiction. But it ignored the fact that Congress and the Court, until fairly recently, avoided concurrent federal-state jurisdiction over crimes. Had the self-styled originalist Justices taken their theory seriously, that fact should have led to the opposite holding. But why did no one even raise this point?

Of greater concern is the Court’s unexplained reliance on a potentially huge change in the law of preemption as applied in American Indian law.