Veneno v. United States

1 Cite as: 607 U. S. ____ (2025)
G
ORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
QUENTIN VENENO, JR. v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 24–5191. Decided November 10, 2025
The petition for a writ of certiorari is denied.
J
USTICE GORSUCH, with whom JUSTICE THOMAS joins,
dissenting from the denial of certiorari.
Petitioner asks us to grant review in this case to recon-
sider 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 inter-
nal 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 im-
memorial.” 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 of-
fense 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 ma-
jor crimes against other tribal members within “Indian

2 VENENO v. UNITED STATES
G
ORSUCH, J., dissenting
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 au-
thorities. 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) (T
HOMAS,
J., dissenting). It had to. Congress’s limited and enumer-
ated powers no more include some plenary power over the
internal affairs of Tribes than they do over the internal af-
fairs of States. Id., at 318–319 (G
ORSUCH, J., concurring).
Kagama itself all but admitted as much. Before the
Court, the federal government argued that the Act repre-
sented a permissible exercise of Congress’s power under the
Constitution’s Indian Commerce Clause. See Art. I, §8,
cl. 3; Brief for United States in United States v. Kagama,
O. T. 1885, No. 1246, p. 23. But the Court rejected that ar-
gument, and rightly so, calling it “a very strained construc-
tion of th[e] clause.” Kagama, 118 U. S., at 378. In the Ma-
jor Crimes Act, after all, the federal government asserted
the power to regulate crimes between tribal members on
tribal land “without any reference to their relation to any
kind of commerce.” Id., at 378–379 (emphasis added). And

3 Cite as: 607 U. S. ____ (2025)
G
ORSUCH, J., dissenting
while the Indian Commerce Clause may afford Congress
considerable authority over “bilateral relations with the
Tribes,” nothing in it authorizes Congress to “reassign to
the federal government inherent sovereign authorities that
belong to the Tribes.” Brackeen, 599 U. S., at 320, 325
(G
ORSUCH, J., concurring) (internal quotation marks and
alterations omitted).
Having dismissed the government’s central defense of the
Act, the Court was left to advance a hodgepodge of others
with no more secure a constitutional footing. First, the
Court invoked the Territories Clause. Kagama, 118 U. S.,
at 379–381. But that provision affords Congress only the
power to make “needful Rules and Regulations” for “Terri-
tor[ies] . . . belonging to the United States.” Art. IV, §3, cl.
2. And while the Clause may allow Congress to establish
local governments in Territories belonging to the Nation be-
fore they enter the Union as States, it does not authorize
Congress “to exercise municipal jurisdiction” over non-fed-
eral lands within a State and over which another sovereign
exercises authority. See Lessee of Pollard v. Hagan, 3 How.
212, 223–224 (1845). Accordingly, that Clause can hardly
supply authority for Congress to regulate conduct on tribal
lands within States. Nor, for that matter, does the Clause,
rightly understood, endow the federal government with ple-
nary power even within the Territories themselves. United
States v. Vaello Madero, 596 U. S. 159, 184–185 (2022)
(G
ORSUCH, J., concurring).
Next, and leaving the Constitution behind, the Kagama
Court gestured to the European doctrine of discovery. 118
U. S., at 381–382. But our Constitution makes no mention
of that doctrine. Nor, at least as conceived by the Marshall
Court shortly after the Nation’s founding, does the doctrine
imply plenary federal power over internal tribal affairs. As
that Court put it, even after the European “discovery” of
North America, Tribes remained “distinct, independent po-
litical communities retaining their original natural rights,”

4 VENENO v. UNITED STATES
G
ORSUCH, J., dissenting
with only “the single exception” that they could have no “in-
tercourse with any other European potentate than the first
discoverer.” Worcester, 6 Pet., at 546, 559 (emphasis
added).
From this, one might glean that the discovery doctrine
meant one European nation could assert certain exclusive
“rights” of intercourse with Tribes as “against all other Eu-
ropean” claimants. R. Clinton, The Proclamation of 1763:
Colonial Prelude to Two Centuries of Federal-State Conflict
Over the Management of Indian Affairs, 69 B. U. L. Rev.
329, 332, n. 6 (1989). Perhaps, too, the doctrine meant that
a private party could not buy tribal land without approval
from the relevant European national authority. Johnson’s
Lessee v. McIntosh, 8 Wheat. 543, 604–605 (1823). But even
on its own terms, the Marshall Court appreciated, the dis-
covery doctrine did nothing to strip Native American Tribes
of “the rights which belong to self government.” Worcester,
6 Pet., at 580; see also K. Richotte, The Worst Trickster
Story Ever Told: Native America, the Supreme Court, and
the U. S. Constitution 26–27 (2025); N. Newton, Federal
Power Over Indians: Its Sources, Scope, and Limitations,
132 U. Pa. L. Rev. 195, 208–210 (1984).*
Lacking any other way to uphold the Act, the Kagama
Court ultimately resorted to archaic colonial prejudices no-
where found in our republican Constitution and wholly an-
tithetical to it. The Major Crimes Act, the Court insisted,
should be left to stand because “Indian tribes are the wards
——————
*Even as articulated by the Marshall Court, the discovery doctrine
leaves much to be desired. If “discovering” a land is enough to secure
certain rights over it, one might wonder why Native Americans hadn’t
obtained those rights over their lands long before Europeans arrived. As
one commentator had already asked by the time of the Nation’s founding:
“If sailing along a coast can give a right to a country, then might the
people of Japan become, as soon as they please, the proprietors of Brit-
ain”? R. Price, Observations on the Nature of Civil Liberty, the Princi-
ples of Government, and the Justice and Policy of the War with America
23 (1776) (emphasis deleted).

5 Cite as: 607 U. S. ____ (2025)
G
ORSUCH, J., dissenting
of the nation” and “communities dependent on the United
States . . . for their daily food.” 118 U. S., at 383–384 (em-
phasis in original). Their “very weakness and helpless-
ness,” the Court continued, imposed a “duty of protection”
upon Congress that came with a corresponding “power.”
Id., at 384. As the Court saw it, “[t]he power of the General
Government over these remnants of a race once powerful,
now weak and diminished in numbers, [was] necessary to
their protection.” Ibid.
For decades, what followed in Kagama’s wake was more
of the same. In one decision after another, this Court did
not look to the Constitution for guidance on the scope of the
federal government’s powers over tribal affairs. Instead,
and often citing Kagama as authority, the Court suggested
that the government could exercise a free-floating “[p]le-
nary authority” over Tribes because they are “wea[k] and
helples[s],” Lone Wolf v. Hitchcock, 187 U. S. 553, 565, 567
(1903), and composed of “simple, uninformed and inferior
people” who find themselves in the care of “a superior and
civilized nation,” United States v. Sandoval, 231 U. S. 28,
39, 46 (1913).
The plenary power theory Kagama helped spawn not only
lacked any basis in the Constitution. It also injected a new
“incoherence into our Indian-law jurisprudence.” Brackeen,
599 U. S., at 329 (G
ORSUCH, J., concurring). Since the
founding and to this day, this Court has acknowledged that
Congress enjoys only limited and enumerated powers and
that Tribes are “sovereign and independent states.”
Worcester, 6 Pet., at 561 (internal quotation marks omit-
ted); see also Wheeler, 435 U. S., at 331. Yet, thanks to de-
cisions like Kagama, this Court has also sometimes sug-
gested that Congress enjoys plenary power to “regulate
virtually every aspect of the tribes.” United States v. Lara,
541 U. S. 193, 214–215 (2004) (T
HOMAS, J., concurring in
judgment). “Those two propositions of course clash”

6 VENENO v. UNITED STATES
G
ORSUCH, J., dissenting
because “only one is true.” Brackeen, 599 U. S., at 330
(G
ORSUCH, J., concurring).
Embarrassed equally by the lawlessness of decisions from
the “high plenary power era” and the incoherence they in-
troduced into our case law, this Court has, with time,
beaten a slow retreat from them. See S. Cleveland, Powers
Inherent in Sovereignty: Indians, Aliens, Territories, and
the Nineteenth Century Origins of Plenary Power over For-
eign Affairs, 81 Texas L. Rev. 1, 62 (2002); see also Brack-
een, 599 U. S., at 326–330 (G
ORSUCH, J., concurring) (trac-
ing these developments). Just two years ago, that retreat
found notable expression in Brackeen where this Court once
again recognized that the Constitution affords Congress
only “a series of enumerated powers, not a series of blank
checks,” and that, “like the rest of its legislative powers,
Congress’s authority to regulate Indians must derive from
the Constitution, not the atmosphere.” Id., at 273, 276 (ma-
jority opinion); see also id., at 330 (G
ORSUCH, J., concur-
ring).
That is exactly right. And it is exactly why this Court
must confront decisions, like Kagama, that cannot be ex-
plained by the Constitution, but only by the atmosphere of
their times. I regret that the Court declines to take up that
challenge today. But whether the day of reckoning for the
plenary power theory comes sooner or later, it must come.
Nor is that day to be feared. If this Court were to over-
turn Kagama, 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.
Equally, if Tribes and the government decide that a degree
of federal involvement in tribal justice is mutually benefi-
cial, the Constitution affords a lawful way to achieve that
end: by treaty. Art. II, §2, cl. 2; see Worcester, 6 Pet., at
550–551. The government may be out of practice using that
tool. See Act of Mar. 3, 1871, 16 Stat. 566. But Congress

7 Cite as: 607 U. S. ____ (2025)
G
ORSUCH, J., dissenting
often addressed criminal justice matters in treaties with
Tribes before the Major Crimes Act, and it could do so
again. See, e.g., 7 Stat. 40–41; 15 Stat. 635–636.
Doubtless, as the government stresses in its opposition to
this petition, many of this Court’s plenary power decisions
have stood for years. Brief in Opposition 22–24. But the
same was once said in defense of Plessy v. Ferguson, 163
U. S. 537 (1896), and Korematsu v. United States, 323 U. S.
214 (1944). And, as with those cases, our plenary power
decisions demand reconsideration if this Court is ever to
bring coherence to the law and make good on its promise of
fidelity to the Constitution. A matter so grave “‘can[not] be
settled until settled right.’” F. Coudert, The Evolution of
the Doctrine of Territorial Incorporation, 26 Colum. L. Rev.
823, 842 (1926) (quoting Justice John Marshall Harlan).