Article IV, Section 3, Clause 1:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The constitutional authority of Congress to regulate commerce with Indian Tribes,1 and of the United States to make treaties with them,2 are not inconsistent with the equality of new states.3 Congress may therefore impose conditions in an enabling act that regulate commerce with Indian Tribes, such as a condition forbidding the introduction of liquor into Indian territory, and those conditions remain valid after statehood.4

Similarly, treaties entered into between the United States Indian Tribes during a territorial period—which may, for example, grant the Tribe rights to fish in designated waters, or hunt and gather on lands ceded by a tribe to the United States—are not automatically extinguished by statehood.5 Such treaty rights are valid unless Congress clearly indicates its intent to abrogate them in its act of admission, or the treaty itself makes clear that the parties intended the rights to terminate at statehood.6 The United States may also transfer title in territorial lands to Indian Tribes by treaty, which is not extinguished by statehood; but title to property underlying navigable waters must be reserved or conveyed by a clear statement or it will pass to the state upon admission under the rule of Pollard’s Lessee v. Hagan.7

Under the 1882 decision United States v. McBratney, when a state admission or enabling act contains no clear provision excluding state jurisdiction, state courts are vested with jurisdiction over crimes committed on Indian reservations by non-Indians against non-Indians upon statehood.8 However, Congress may explicitly preempt state jurisdiction in Indian country by federal law, and state jurisdiction is implicitly preempted “when the exercise of state jurisdiction would unlawfully infringe on tribal self-government.” 9 In Oklahoma v. Castro-Huerta, the Court extended McBratney’s presumption of state criminal jurisdiction to crimes committed by non-Indians against Indians on Indian reservations, absent congressional preemption.10 Because divesting a state of jurisdiction over crimes within its territory affects its sovereignty under the equal footing doctrine, the Court required “clear statutory language” in a state enabling act or another act of Congress to preclude state criminal jurisdiction over crimes by non-Indians.11

Footnotes

1

U.S. Const. art. I, § 8, cl. 3; see ArtI.S8.C3.9.1 Scope of Commerce Clause Authority and Indian Tribes.

2

U.S. Const. art. II, §2, cl. 2; see ArtII.S2.C2.1.3 Scope of Treaty-Making Power.

3

See Dick v. United States, 208 U.S. 340. 405–06 (1908); accord Johnson v. Gearlds, 234 U.S. 422, 439 (1914); United States v. Sandoval, 231 U.S. 28, 47 (1913); Ex parte Webb, 225 U.S. 663 (1912).

4

Sandoval, 231 U.S. at 49.

5

See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204 (1999); United States v. Winans, 198 U.S. 371, 378 (1905). The Supreme Court formerly held to the contrary in Ward v. Race Horse, which had applied the equal footing doctrine to find that a treaty granting hunting rights to certain tribes was implicitly extinguished by Wyoming’s admission as a state. 163 U.S. 504, 515–16 (1896), overruled by Herrera v. Wyoming, No. 17-532 (U.S. May 20, 2019). The Court later explained that Race Horse “rested on a false premise” that state sovereignty over natural resources was an area of exclusive state jurisdiction. Mille Lacs, 526 U.S. at 204. Rather, “[a]lthough States have important interests in regulating wildlife and natural resources within their borders, this authority is shared with the Federal Government when the Federal Government exercises one of its enumerated constitutional powers, such as treaty making.” Id. In Herrera v. Wyoming, the Court definitively overruled the equal footing holding of Race Horse. See Herrera, slip op. at 11.

6

Herrera, slip op. at 13–14; see also Mille Lacs, 526 U.S. at 206–07.

7

See Idaho v. United States, 533 U.S. 262, 272–74 (2001); Montana v. United States, 450 U.S. 544, 551–52 (1981); see also United States v. State of Oregon, 295 U.S. 1, 14 (1935); United States v. Holt State Bank, 270 U.S. 49, 54–55 (1926).

8

United States v. McBratney, 104 U. S. 621, 623–24 (1882); accord Draper v. United States, 164 U.S. 240, 245–247 (1896).

9

Oklahoma v. Castro-Huerta, No. 21-429, slip op. at 7 (U.S. June 29, 2022).

10

Id. at 6–7, 25.

11

Id. at 23 (citing Draper, 164 U.S. at 242–43).