Here is today’s order list, with an opinion by Justice Gorsuch (joined by Justice Thomas) dissenting from the denial of certiorari in Veneno v. United States:

Briefs:

Petition for Certiorari – Veneno

BIO

Reply

This is hardly a surprise given that both judges were critical of the Kagama decision. One presumes they come at this issue with a far different eye toward the outcome. Justice Thomas dissented in Brackeen because he found little constitutional text authorizing Congress’ Indian affairs powers. Thomas has seemingly sought an endgame to Indian affairs by attacking Congressional powers and tribal sovereignty. Justice Gorsuch found plenty of Congressional Indian affairs power in the text and structure of the Constitution, but not “plenary power” as described by the Kagama Court. His views are seemingly more in line with scholars like Bob Clinton, who saw no Congressional power to regulate the internal governance of tribal nations.

Certainly on a superficial level, who can really like Kagama? After all, the Court’s characterization of Indian people is unbelievably racist. It’s formalistic reading of the Constitution is also pretty . . . well, formalistic. There are important things in Kagama though, such as the notion that Congress possesses at least some powers by virtue of the duty of protection. Kagama is largely a dead letter anyway, since the Court has essentially already adopted Justice Gorsuch’s view of Congressional powers (e.g., Negonsott v. Samuels and U.S. v. Lara).

If these judges get their way and the Court eventually accepts a vehicle to review Kagama, for judges like Gorsuch, it might be merely housecleaning, but for judges like Thomas, it’s a potential revolution. There is ever-present the conflict between a formalist (Thomas) and a functionalist (Gorsuch) reading of the Constitutional text. I will continue to worry if the Court decides it needs to address Kagama if that’s the framing. It would be odd if the Court decided it needed a case to clean up its jurisprudential mess — full employment for Indian law profs!!! — where the law is settled.

More worryingly (perhaps?), the vehicle to reassess Kagama can only really be a federal criminal case. A vehicle like that will not be a good one to set the boundaries of Congressional authority over tribal nations, but instead a vehicle for revisiting Brackeen’s Congressional powers holding.

In the end, it’s just these two, so don’t hold your breath.