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The Court's Blush: Undoing Plenary Power Over Tribes
Guest Blogger
Lorianne Updike Schulzke
On November 10, the Supreme Court declined to disturb Congress' plenary power over Tribes by denying certiorari in Veneno v. US. The denial prompted a stinging dissent by Justices Gorsuch and Thomas, which condemned Congress' plenary power as "a theory that should make this Court blush."
The Court initially recognized (some would say created) plenary power over tribes in US v. Kagama, which upheld the application of the Major Crimes Act of 1885 on tribal lands. The same was upheld in US v. Brackeen in 2023, but barely. In her opinion for the Court, Justice Barrett hinted that history might have been relevant in disrupting plenary power, but the parties presented no such evidence.
This did not stop Justices Gorsuch and Thomas from enlisting history in detailing the source of the Court's "blush": no clause in the Constitution granted plenary power, and, relying on my research, detailed that the Constitutional Convention had explicitly rejected an Indian Affairs Clause. Instead, the Court had fashioned plenary power wholecloth after the termination of Tribal treaty-making in 1871.
Despite Justice Barrett's queue (and the not-so-subtle opening of Justices Gorsuch and Thomas) that history may yet persuade the Court to overturn plenary power over tribes, Veneno's petition to the Court made no such proffer.
It was a missed opportunity. Though they gestured towards history, counsel of record Alan Mouritsen, appointed for the indignant tribesman by the Tenth Circuit, relied largely on precedent in their argument to accept the case and overturn Kagama. However, here, it would be history, not precedent, which would do the trick. Especially for the current Court.
Future counsel seeking to overturn Kagama should learn from this miss and lean more heavily into historical arguments.
Lorianne Updike Schulzke is Assistant Professor, Northern Illinois University College of Law. You can reach her by e-mail at lautoler@gmail.com.