From Justice Gorsuch (joined by Justice Thomas), dissenting from denial of certiorari in Veneno v. United States:
Petitioner asks us to grant review in this case to reconsider United States v. Kagama, 118 U. S. 375 (1886). Kagama helped usher into our case law the theory that the federal government enjoys “plenary power” over the internal affairs of Native American Tribes. It is a theory that should make this Court blush. Not only does that notion lack any foundation in the Constitution; its roots lie instead only in archaic prejudices. This Court is responsible for Kagama, and this Court holds the power to correct it. We should not shirk from the task.
As “sovereign and independent states,” Native American Tribes have governed their internal affairs “from time immemorial.” Worcester v. Georgia, 6 Pet. 515, 559–561 (1832) (internal quotation marks omitted). Among the sovereign powers Tribes have always enjoyed is the power to redress crimes involving their own peoples. Reflecting as much, a great many Tribes today have courts, not wholly unlike those found in States and counties across the country, open to render justice when one tribal member commits an offense against another on tribal land.
In the Major Crimes Act of 1885, the federal government sought to curtail these traditional sovereign tribal powers. There, Congress effectively wrote its own Indian criminal code, directing that tribal members who commit certain major crimes against other tribal members within “Indian country” may be tried and punished in federal court. Kagama, 118 U. S., at 377; see 23 Stat. 385. The Act may not have completely displaced tribal criminal-justice authorities. See United States v. Wheeler, 435 U. S. 313, 330–331 (1978). Even so, the law surely represented a sweeping assertion of federal power, one that would be unthinkable elsewhere in the United States. Yes, of course, Congress may adopt a variety of criminal laws consistent with its “limited” and “enumerated” powers under the Constitution. McCulloch v. Maryland, 4 Wheat. 316, 406 (1819). But, no, Congress does not enjoy some “general right to punish” crimes of its choosing “within . . . the States” however and whenever it pleases. Cohens v. Virginia, 6 Wheat. 264, 426 (1821). Our Constitution “withhold[s] from Congress” that kind of “plenary police power.” United States v. Lopez, 514 U. S. 549, 566 (1995).
Despite these foundational principles, this Court in Kagama upheld the Major Crimes Act. To arrive at that result, the Court relied on “little more than ipse dixit.” Haaland v. Brackeen, 599 U. S. 255, 357 (2023) (THOMAS, J., dissenting). It had to. Congress’s limited and enumerated powers no more include some plenary power over the internal affairs of Tribes than they do over the internal affairs of States. Id., at 318–319 (GORSUCH, J., concurring).
Kagama itself all but admitted as much….
Although I’m not a scholar of federal Indian law, and so don’t have a definitive view on the matter, I’ve long doubted that Kagama is sound from an originalist perspective. At minimum, its reasoning seems extremely suspect, for the reasons Justice Gorsuch describes. And that’s consistent with my view of the post-Civil War Court in others areas, where I think it got far afield from the original meaning, especially in extravagant claims about Congress’ plenary powers and disregard of constitutional limitations. Kagama and related cases are precursors to the Insular Cases of the early twentieth century, on which I do have a definite opinion (as does Justice Gorsuch).
Posted at 6:09 AM