Introduction

In Veneno v. United States, 607 U.S. ___ (2025), the Supreme Court denied a petition for certiorari from the Tenth Circuit. Although the Court declined review, Justice Gorsuch, joined by Justice Thomas, issued a forceful dissent from the denial that calls for reconsideration of United States v. Kagama, 118 U.S. 375 (1886)—the foundation for the “plenary power” doctrine in federal Indian law. The petitioner, Quentin Veneno, Jr., sought Supreme Court review to challenge the constitutional footing of the federal Major Crimes Act of 1885, which channels certain “major” offenses by Indians in Indian country into federal court. The dissent argues that Kagama’s reasoning never had a constitutional basis; instead, it rested on outmoded and prejudicial assumptions that conflict with the Constitution’s structure of limited and enumerated federal powers and with the sovereignty of Native Nations recognized since Worcester v. Georgia (1832).

The key issues framed by the dissent are:

• Whether the Constitution grants Congress a “plenary” authority over the internal affairs of Native American Tribes.
• Whether the Major Crimes Act can be justified under any enumerated power, including the Indian Commerce Clause, the Territories Clause, or historical doctrines such as discovery.
• How the Court should reconcile longstanding precedent asserting both tribal sovereignty and federal plenary control, two propositions the dissent deems irreconcilable.

While the Court did not take the case, the dissent crystallizes a competing vision of federal Indian law: one that replaces unfettered federal dominion with constitutional limits and tribal self-government, and that looks to treaty-making—not plenary fiat—as the lawful mechanism for any federal involvement in exclusively intratribal matters.

Summary of the Opinion (Dissent from Denial of Certiorari)

Justice Gorsuch urges the Court to revisit and overturn Kagama. He argues that:

• The Constitution provides Congress with limited, enumerated powers; it does not include a general criminal or police power and does not contain any free-floating “plenary power” over tribal internal affairs.
• Kagama’s justifications for sustaining the Major Crimes Act—rejected reliance on the Indian Commerce Clause, gestures toward the Territories Clause, and invocations of the European “doctrine of discovery”—do not support congressional authority to regulate crimes solely between tribal members on tribal lands.
• Kagama ultimately rested on paternalistic and racist assumptions about Native people as “wards” who are “weak and helpless” and depend on the federal government “for their daily food,” premises wholly alien to a republican Constitution.
• This plenary power framework has generated doctrinal incoherence: the Court simultaneously affirms that Tribes are “sovereign and independent states” while maintaining that Congress can “regulate virtually every aspect” of tribal life. Both cannot be true.
• Recent decisions (notably Haaland v. Brackeen) reflect a retreat from the plenary model and a renewed insistence that any federal authority over Indian affairs must derive from enumerated powers “not the atmosphere.”
• If Kagama were overturned, Tribes would retain and exercise their inherent criminal jurisdiction over offenses by Indians in Indian country; and if federal participation is desired, the Constitution provides a lawful avenue—the Treaty Clause—for negotiated arrangements.
• That some plenary-power-era precedents are old is no reason to keep them. The dissent analogizes to repudiated pillars like Plessy and Korematsu, insisting that “a matter so grave cannot be settled until settled right.”

What the Court Did and Did Not Do

• Did: Deny certiorari; no merits ruling was issued by the Court.
• Did Not: Overrule Kagama or the Major Crimes Act; change any binding legal rule.
• Significance: The dissent spotlights a growing jurisprudential movement to constrain the plenary power doctrine and restore tribal sovereignty within the Constitution’s enumerated-powers framework.

Analysis

Precedents and Authorities Cited

• United States v. Kagama, 118 U.S. 375 (1886): The keystone of federal “plenary power” over tribes, upholding the Major Crimes Act. Kagama rejected the Indian Commerce Clause as a basis for regulating purely intratribal crimes “without any reference to…commerce,” then leaned on the Territories Clause and paternalistic reasoning. The dissent underscores that none of these grounds supply constitutional authority for federal control of tribal internal criminal matters.
• Worcester v. Georgia, 6 Pet. 515 (1832): Chief Justice Marshall described Tribes as “distinct, independent political communities” with inherent sovereignty, retaining self-government except for limited constraints related to dealings with other European powers post-discovery. Worcester anchors the dissent’s sovereignty-first framework.
• Johnson’s Lessee v. McIntosh, 8 Wheat. 543 (1823): Articulates aspects of the discovery doctrine (e.g., exclusive sovereign right of preemption to purchase tribal lands), but, as the dissent stresses, it did not extinguish tribal self-government.
• McCulloch v. Maryland, 4 Wheat. 316 (1819); Cohens v. Virginia, 6 Wheat. 264 (1821); United States v. Lopez, 514 U.S. 549 (1995): Foundational cases reinforcing that Congress possesses only limited, enumerated powers and lacks a general police power to criminalize conduct however and whenever it pleases within the States. The dissent applies this principle to Indian country, contending there is no enumerated “plenary” power over tribal internal affairs.
• United States v. Wheeler, 435 U.S. 313 (1978): Recognizes that Tribes retain elements of inherent sovereignty, including some criminal jurisdiction over their own members, even after federal statutes like the Major Crimes Act.
• United States v. Lara, 541 U.S. 193 (2004) (Thomas, J., concurring in the judgment): Highlights the tension between claims of plenary congressional authority and the acknowledgment of tribal sovereignty—“those two propositions of course clash because only one is true,” as Gorsuch later puts it in Brackeen.
• Haaland v. Brackeen, 599 U.S. 255 (2023): The majority reiterated that Congress’s powers are enumerated and not blank checks; Gorsuch’s concurrence emphasized that the Indian Commerce Clause concerns relations with tribes but does not permit reassignment to the federal government of inherent tribal authorities. The dissent sees Brackeen as a doctrinal step away from plenary power toward constitutional grounding.
• Lessee of Pollard v. Hagan, 3 How. 212 (1845): Limits the Territories Clause’s reach; it does not allow Congress to exercise municipal jurisdiction over non-federal lands within a State. The dissent invokes this to show why the Territories Clause cannot sustain federal criminal jurisdiction over tribal lands inside States.
• United States v. Vaello Madero, 596 U.S. 159 (2022) (Gorsuch, J., concurring): Further counseling against reading the Territories Clause as a font of plenary domestic power, even within the territories themselves.
• Lone Wolf v. Hitchcock, 187 U.S. 553 (1903); United States v. Sandoval, 231 U.S. 28 (1913): Exemplars of the “high plenary power era,” relying on paternalistic and overtly prejudicial characterizations of Native peoples (“simple, uninformed and inferior people”; “weak and helpless”) to justify sweeping congressional power. The dissent marks these as jurisprudential low points that should no longer guide constitutional analysis.
• Act of Mar. 3, 1871, 16 Stat. 566: Congress ended formal treaty-making with tribes, but the dissent notes that the Constitution still provides the Treaty Clause as the legitimate vehicle for consensual federal-tribal arrangements, including criminal justice agreements. Earlier treaties addressed criminal jurisdiction, and similar agreements could be renewed.

Legal Reasoning

The dissent’s reasoning proceeds in three steps.

1. First principles: Enumerated powers and tribal sovereignty. The Constitution grants Congress “a series of enumerated powers, not a series of blank checks,” and it withholds a general police power. Tribal Nations, meanwhile, retain inherent sovereignty, including criminal jurisdiction over their own citizens on their own lands. These two premises flow from the Constitution and Worcester and must structure the analysis.
2. Disassembling Kagama’s supports. Kagama’s approval of federal criminal jurisdiction over intratribal offenses is untenable because:
   • Indian Commerce Clause: The Major Crimes Act regulates crimes between Indians “without any reference to…commerce.” Kagama itself called the Commerce Clause rationale “a very strained construction.” Thus, the Clause cannot justify the Act’s intrusion into local, internal self-government.
   • Territories Clause: The Clause allows Congress to make needful rules for “Territories…belonging to the United States,” not to exercise municipal jurisdiction on non-federal lands within States or lands under another sovereign’s authority (including tribal lands within States).
   • Discovery doctrine: The Constitution does not incorporate the doctrine, and, as articulated by the Marshall Court, it preserved tribal self-government save for limited external relations effects. It cannot be a basis for federal plenary power over internal tribal criminal matters.
   • Paternalistic “wardship” theory: Kagama ultimately rested on the premise that Indians are “wards” whose “weakness and helplessness” impose a duty and thus a power on Congress. The dissent denounces this as an unconstitutional, extra-textual, and prejudiced foundation that cannot sustain a federal criminal regime over internal tribal matters.
3. Restoring coherence: A consent-and-constitution model. The dissent calls for a return to a coherent framework. Where purely internal tribal matters are concerned, Tribes exercise their own sovereign authority. If Tribes desire federal participation in criminal justice, the Constitution offers a legitimate route—the Treaty Clause—by which mutually agreeable arrangements can be forged. This approach harmonizes enumerated powers doctrine with tribal sovereignty and sheds the incoherence bred by plenary-power jurisprudence.

Impact and Implications

Because the Court denied certiorari, nothing changes immediately. But the dissent sketches a roadmap with potentially far-reaching consequences if and when a majority adopts its view.

• Criminal jurisdiction in Indian country. Overruling Kagama would call into question the federal government’s unilateral authority under the Major Crimes Act to prosecute crimes committed by Indians against Indians in Indian country. The dissent insists that no “vacuum” follows: Tribes possess inherent jurisdiction to prosecute their citizens for such offenses. Where federal participation is desired (for resources, cross-border enforcement, or detention capacity), negotiated instruments—ideally treaties—could specify jurisdiction-sharing arrangements.
• Recalibrating federal Indian law away from plenary power. A repudiation of Kagama would pressure other plenary-power-era doctrines (e.g., unilateral abrogation of treaty rights and broad paternalistic “trust” assertions) to conform to a text-and-structure approach. Statutes affecting internal tribal governance would need a firm tether to enumerated powers or tribal consent.
• Consistency with modern constitutional limits. The dissent aligns Indian law with the broader post–New Deal and federalism jurisprudence that polices the boundary between enumerated federal powers and state/local police powers (e.g., Lopez). It extends that logic to tribal governments, framing them as sovereigns whose internal affairs are not subject to generalized federal control.
• Institutional mechanisms and capacity. A treaty-based or consent-based model would likely increase the salience of intergovernmental agreements, funding compacts, and cooperative law enforcement protocols between Tribes and the federal government. Congress might need to revisit the 1871 bar on treaty-making with tribes to revive that constitutional pathway or develop functionally equivalent consent mechanisms grounded in enumerated powers.
• Signal to lower courts and litigants. Although not binding, the dissent signals receptivity by at least two Justices to a frontal challenge to Kagama and the plenary power doctrine. Litigants may frame future cases to present a clean vehicle for reconsideration, and lower courts may read the dissent, together with Brackeen, as a caution to avoid expanding plenary-power rationales and to favor narrow, enumerated-power justifications when construing federal statutes touching internal tribal matters.

Complex Concepts Simplified

• Plenary power (in federal Indian law): A judicially created idea that Congress holds sweeping, near-limitless authority over tribes and their internal affairs. The dissent argues this concept lacks constitutional grounding and rests on outdated, prejudicial assumptions.
• Enumerated powers: The specific powers listed in the Constitution that Congress may exercise (e.g., regulate commerce, declare war). There is no general “police power” to regulate crime everywhere; criminal law is largely a state or sovereign function unless tied to an enumerated federal power.
• Indian Commerce Clause (Art. I, §8, cl. 3): Authorizes Congress to regulate commerce “with the Indian Tribes.” The dissent contends this concerns trade and intergovernmental relations, not purely internal tribal criminal matters.
• Territories Clause (Art. IV, §3, cl. 2): Lets Congress make rules for U.S. territories. It does not grant Congress municipal police power over non-federal lands inside States, including tribal lands, and cannot justify regulating intratribal crime.
• Doctrine of discovery: A historical European concept under which discovery by a European sovereign conferred certain rights against other Europeans. As used by the Marshall Court, it did not erase tribal self-government. The dissent rejects it as a basis for federal plenary power.
• Major Crimes Act (1885): A federal statute that places prosecution of certain serious offenses committed by Indians in Indian country into federal court. Its constitutionality in purely intratribal scenarios rests on Kagama’s plenary power rationale, which the dissent seeks to revisit.
• Treaty Clause (Art. II, §2, cl. 2): The constitutional mechanism by which the United States may enter treaties (with Senate consent). The dissent proposes treaty-making (or functionally similar consent-based arrangements) as the lawful way to structure federal involvement in tribal criminal justice.
• Tribal sovereignty: The inherent power of Tribes, as distinct political communities predating the Constitution, to govern their own members and territories—subject to limits imposed by the Constitution, valid treaties, and statutes that are properly grounded in enumerated powers or tribal consent.

Conclusion

Justice Gorsuch’s dissent from the denial of certiorari in Veneno v. United States is not a change in the law, but it is a clear and consequential statement of constitutional principle: there is no “plenary power” over the internal affairs of Native Nations hiding in the Constitution’s interstices. Kagama’s survival has depended on extra-constitutional scaffolding—paternalism, the Territories Clause pressed beyond its limits, and a misapplied discovery doctrine—that cannot withstand modern constitutional scrutiny.

The dissent contends that the path forward is both principled and practical. Tribes should exercise their inherent criminal jurisdiction over their own citizens; where federal involvement is desired, the Treaty Clause provides a legitimate instrument for consensual, tailored arrangements. In urging the Court to “settle” this grave matter “right,” the dissent aligns federal Indian law with the Constitution’s broader commitments to enumerated powers and respect for sovereign self-government.

Even without immediate doctrinal effect, Veneno’s dissent is a significant marker. It synthesizes Worcester’s sovereignty, Lopez’s limits on federal police power, and Brackeen’s enumerated-powers ethos into a coherent critique of plenary power. Should a future case take up that invitation, the Court will face a foundational choice: whether to cling to Kagama’s atmosphere or to return to the Constitution’s text, structure, and promises.