What happened
The U.S. Supreme Court declined Monday to take up a case asking it to reconsider United States v. Kagama, leaving in place a foundational precedent supporting federal power over major crimes involving Native Americans on tribal land.
Justice Neil Gorsuch, joined by Justice Clarence Thomas, dissented from the denial of certiorari, saying the court should confront Kagama's role in federal Indian law. Kagama, he wrote, helped usher in the theory that the federal government enjoys plenary power over the internal affairs of Native American tribes, a theory he said "should make this Court blush."
The dissent framed the case as a challenge to the constitutional basis for the Major Crimes Act of 1885. Justice Gorsuch said tribes have governed their internal affairs from time immemorial and have sovereign authority to address crimes involving their own members, while the Major Crimes Act allowed federal prosecution of certain major crimes committed by tribal members against other tribal members in Indian country.
Justice Gorsuch argued that Kagama could not be squared with Congress' limited and enumerated powers. The dissent said the Indian Commerce Clause did not justify federal regulation of crimes between tribal members on tribal land, that the Territories Clause could not supply the needed authority, and that the discovery doctrine did not strip tribes of self-government rights.
The opinion also tied Kagama to later decisions that described tribes in terms Justice Gorsuch characterized as rooted in colonial prejudice. He said the court has retreated from the high plenary-power era and pointed to Haaland v. Brackeen for the principle that Congress' authority in Indian affairs must come from the Constitution rather than an undefined federal power.
Because the court denied review, Kagama and the Major Crimes Act framework remain undisturbed. But the dissent marked another call from Justices Gorsuch and Thomas to revisit the foundations of federal Indian-law doctrine, with Justice Gorsuch saying that if Kagama were overturned, tribes could exercise sovereign powers over major crimes among Native Americans and any mutually beneficial federal role could be pursued through treaties.