Gorsuch Calls for Overturning 19th-Century Ruling Granting Federal Power Over Tribal Affairs

The Supreme Court on Monday declined to hear Quentin Veneno, Jr. v. United States, leaving intact a lower court ruling that upheld the federal government’s authority to prosecute certain crimes committed by Native Americans on tribal land.

In a sharply worded dissent joined by Justice Clarence Thomas, Justice Neil Gorsuch called on the Court to revisit and overturn the 1886 decision United States v. Kagama, which established sweeping federal authority — known as “plenary power” — over the internal affairs of Native American tribes.

“It is a theory that should make this Court blush,” Gorsuch wrote. “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.”

The Kagama decision upheld the Major Crimes Act of 1885, which placed certain major crimes committed by Native Americans in Indian Country under federal jurisdiction. The law followed the indictment of a Yurok man named Kagama (also known as Pactah Billy) for the murder of another Native American on a reservation.

In his dissent, Gorsuch argued that Kagama wrongly deprived tribes of their inherent right to handle criminal matters within their own communities. “If this Court were to overturn Kagama,” he wrote, “Tribes could exercise their sovereign powers to address ‘major’ crimes among Indians — something this Court has no business assuming they are too ‘inferior’ or ‘weak’ to do without supervision from a ‘superior’ people.”

Solicitor General Elizabeth Prelogar, representing the federal government, urged the Court not to revisit Kagama, warning that overturning it would undo more than a century of legal precedent. “Petitioner would in fact have this Court overturn not merely Kagama but a long line of precedents recognizing Congress’s broad authority over Indians in Indian Country,” the government’s brief stated.

The Supreme Court’s refusal to hear the case leaves intact a ruling by the Tenth Circuit Court of Appeals, which rejected Veneno’s argument that his federal convictions were invalid because Congress lacks the constitutional authority to criminalize intratribal conduct.

Gorsuch concluded his dissent with a warning that the Court cannot avoid confronting the issue forever: “Whether the day of reckoning for the plenary power theory comes sooner or later, it must come.