The Supreme Court, becoming known as a tribunal willing to overturn some of its major decisions, could only muster two votes on Monday to reconsider one of the most fiercely condemned rulings on the law governing America’s Indian tribes.

The Court has had the new case under consideration for almost 15 months, and its staff had listed it 21 times for the full Court to consider.  It would have needed four votes to grant review, and this morning it received only those of Justices Neil M. Gorsuch and Clarence Thomas.

In a seven-page dissenting opinion written by Gorsuch and joined in full by Thomas, they compared the 139-year-old ruling to two of the Court’s most controversial decisions on race: the 1896 ruling upholding racial segregation anoaand the 1944 decision in favor of forced imprisonment of Americans of Japanese ancestry.

The dissenters declared: “If this Court is ever to bring coherence to the law and make good on its promise of fidelity to the Constitution,” it must reconsider the 1886 decision in the case of United States v. Kagama.  “A matter so grave cannot be settled until settled right.”

The decision in Kagama, issued in May 1886, unanimously upheld a law passed by Congress in 1885 (the Major Crimes Act) that gave federal courts the authority to try Indians for crimes between tribal members that occurred on reservation lands.

Without finding any specific basis in the Constitution, that decision created what has since been called the “plenary power” of Congress over Indian affairs in the United States.  “Plenary” usually means exclusive or absolute.

The doctrine, usually invoked with racist language about Indian tribes, was among a string of decisions in the 19^th Century that steadily diminished the power of Native Americans to govern themselves even while increasingly taking away their homelands and sending them to government-designated reservations.

Congress enacted that shift of criminal law enforcement to federal courts because it was deeply disturbed by a decision the Supreme Court had issued in 1881 in the case of Ex parte Crow Dog.  Crow Dog had shot and killed another member of the Great Sioux Nation in Dakota Territory in 1881, in a dispute over whether the tribe should sign a treaty with the federal government.

Initially tried by his own tribe, Crow Dog was required only to pay the other tribal member’s family $600 and turn over to them eight horses and a blanket as his punishment.   However, territorial officials put him on trial in their court, and Crow Dog was convicted and sentenced to death.  He appealed to the  Supreme Court, which ruled unanimously that the territorial court had no jurisdiction to try the case.

That result was overturned by Congress in 1885, leading to the Kagama ruling a year later. .

The current Supreme Court was asked to overturn that 1886 ruling in an appeal filed in July of last year by a New Mexico man, Quentin Veneno, Jr.  A member of the Jicarilla Navajo Nation in that state, he was convicted under the Major Crimes Act of domestic assault by a habitual offender for a series of personal assaults on his girl-friend, S.H.  She, too, was a tribal member; her injuries sent her to the hospital at least twice.

Veneno was convicted in federal court and sentenced to nine years and seven months in prison.  He challenged his conviction in his Supreme Court appeal, raising the issue of whether the Court would now overrule the Kagama precedent.  He also raised a second issue, testing how the trial court had handled his trial by partially closing the courtroom during the covid pandemic.

The Biden Administration, asked by the Court to respond to the appeal, urged the Court not to grant review.  It disputed the appeal on both the status of the Kagama precedent and on the closed courtroom issue.

When a Court considers a case multiple times, without acting on it, that usually is an indication that it is a strong case for potential review, at least with some of the Justices. It is unusual, though, for a case to be re-listed for consideration 21 times, as this one was between its first listing in August 2024 and its final listing last Friday.

It is possible that Gorsuch had taken all of that time to draft a dissenting opinion, expecting the Court to fail to achieve the four votes needed for review.  He tends to write opinions quite quickly, so a more likely explanation was that he and Thomas were attempting to encourage at least two other Justices to vote to take on the dispute.  That clearly did not happen.

The Court’s most recent major decision in Native American law came two years ago, when it upheld against a constitutional challenge a federal law that gave Native American families a clear priority to adopt tribal children.  The Court majority did not rely in that case on the Kagama precedent, and did remark that the concept of “plenary power” for Congress over Indian affairs had its limits, although it did not spell out any restrictions on it.  Both Gorsuch and Thomas criticized the precedent in separate opinions in that case.

The Court will also soon consider two other significant Native American law cases: a challenge to state governments’ power to impose income taxes on tribal members’ earnings in jobs with the tribe, a case from Oklahoma, and on the rights of native Americans to challenge legislative election districting maps that took away their chances of election, a case from North Dakota.  Both are developing on time lines that suggest some action by the Court early next year.

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In an unrelated action yesterday, the Court turned aside a request to overrule another one of its historic precedents: its 2015 decision establishing a constitutional right to marriage for same-sex couples (the case of Obergefell v. Hodges). The challenge to that decision was by Kim Davis, a former county clerk in Kentucky who was jailed for refusing — for religion reasons — to issue a marriage license to a same-sex couple.

That couple later sued Davis, and won a verdict of $100,000 plus $260,000 for attorneys’ fees.  She has been pursuing a prolonged series of court cases seeking to use the argument that the Obergefell decision was wrong as a defense to the legal cases against her.

The Court denied her latest filing with no indication that any Justice had voted to hear it.