Gorsuch, Thomas Urge Supreme Court to Revisit 1886 Ruling on Tribal Sovereignty

By Staff | Cherokee 411

WASHINGTON — Two U.S. Supreme Court justices are calling on the nation’s highest court to reconsider a 139-year-old decision that gave the federal government sweeping authority over internal tribal affairs.

In a dissent issued Monday, Justice Neil Gorsuch, joined by Justice Clarence Thomas, said the Court should “correct” its 1886 decision in United States v. Kagama. That ruling upheld the Major Crimes Act of 1885 and established federal jurisdiction over certain crimes committed by Native Americans on tribal land.

Associate Justice Neil Gorsuch

The justices’ comments came as the Court declined to hear Quentin Veneno Jr. v. United States. Veneno, a member of the Jicarilla Apache Nation, was convicted of domestic assault against another tribal member. His attorney argued that Congress lacks constitutional authority to criminalize “intratribal conduct of Indians on Indian land” and asked the Court to overturn Kagama.

A Long-Standing Precedent

The 1886 Kagama ruling stemmed from a murder case involving a Native American defendant on reservation land. It confirmed federal power under the Major Crimes Act and created what later became known as the doctrine of “plenary power,” granting Congress broad control over tribal affairs.

Gorsuch wrote that the theory “should make this Court blush,” calling its constitutional basis unfounded and rooted “in archaic prejudices.” He argued that the Court “must confront decisions, like Kagama, that cannot be explained by the Constitution, but only by the atmosphere of their times.”

“If this Court were to overturn Kagama, Tribes could exercise their sovereign powers to address ‘major’ crimes among Indians,” Gorsuch added, rejecting the notion that Native nations are “too inferior or weak” to govern themselves.

Thomas joined Gorsuch’s dissent without additional comment.

Response From the Government

In a November 2024 brief, Solicitor General Elizabeth B. Prelogar and Justice Department attorneys urged the justices not to revisit Kagama. They argued that overturning the 1886 precedent would also upend “a long line of precedents recognizing Congress’s broad authority over Indians in Indian country.”

The Supreme Court’s denial of review leaves in place a ruling from the 10th U.S. Circuit Court of Appeals, which rejected Veneno’s claim that his convictions were invalid because the federal government lacked jurisdiction.

Broader Implications

Gorsuch’s dissent continues his pattern of supporting tribal sovereignty in key cases, including McGirt v. Oklahoma (2020), which reaffirmed reservation boundaries in eastern Oklahoma. His opinion signals growing debate within the Court over the extent of federal authority in Indian Country.

“I regret that the Court declines to take up that challenge today,” Gorsuch wrote. “But whether the day of reckoning for the plenary power theory comes sooner or later, it must come.”