From today's opinion dissenting from denial of certiorari in Veneno v. U.S. by Justice Gorsuch, joined by Justice Thomas:
Petitioner asks us to grant review in this case to reconsider United States v. Kagama (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 (1832). 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.
The Act may not have completely displaced tribal criminal-justice authorities. 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 (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 (1821). Our Constitution "withhold[s] from Congress" that kind of "plenary police power." United States v. Lopez (1995).
