Supreme Court urged to retreat from doctrine that reeks of superiority complex and 'archaic colonial prejudices'

U.S. Supreme Court Justices Neil Gorsuch and Clarence Thomas

By Mar-Vic Cagurangan

The U.S. Supreme Court must, once and for all, ditch its "archaic colonial prejudices," Justices Neil Gorsuch said in an opinion lambasting a 19th-century doctrine, which upheld the overarching federal power over native tribes.

Gorsuch deplored that the Supreme Court skipped the opportunity to overturn an 1886 ruling when it declined to review Veneno v. United States, in which the defendant, Quentin Veneno Jr., challenged a court’s decision from the “high plenary power era.”

In the appeal, Veneno sought to quash the 1886 decision in United States v. Kagama, which backed the Major Crimes Act of 1885 that sought to curtail the Native Americans’ traditional sovereign tribal powers based on the assumption that they were “weak and inferior” and needed to be supervised by “superior people.”

The Kagama ruling endorsed the federal takeover of the tribal justice system for certain crimes committed by Native Americans on native territory.

Gorsuch noted that the Supreme Court’s subsequent decisions in the wake of the Kagama ruling were largely based on its superiority complex and antiquated attitude toward the natives.

“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,”

Gorsuch wrote in a dissenting opinion joined by Justice Clarence Thomas.

Instead, he added, the court suggested that the federal government “could exercise a free-floating ‘plenary authority’ over tribes because they are ‘weak and helpless,’ … and composed of  ‘simple, uninformed and inferior people,’ who find themselves in the care of ‘a superior and civilized nation.”

The Kagama ruling stemmed from the murder of a Native American by another Native American on a reservation, whose circumstances ran parallel to the Veneno case. 

Veneno, a member of the Jicarilla Apache Nation, was convicted of domestic assault on another member of the tribe. 

If the court were to overturn Kagama, Gorsuch said, tribes could exercise their sovereign powers to address major crimes among Indians. He argued that the court “has no business assuming” that the natives are “too inferior or weak” to manage justice “without supervision from ‘superior’ people.”

Gorsuch disputed the view that the Territories Clause of the U.S. Constitution provided Congress with “plenary power” over native tribes.

“I regret that the court declines to take up that challenge today,” Gorsuch wrote. “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.”

Although the Supreme Court declined to confront the challenge, advocates for equity and self-determination welcomed Gorsuch and Thomas’s rejection of Congress’s unrestrained authority.

“As concerns about authoritarian rule grow across the United States, these cautionary words about the breathtakingly expansive scope of congressional power over tribal communities and people in U.S. territories deserve more attention,” said Neil Weare, an attorney and co-director of Right to Democracy.

Although unincorporated U.S. territories lack official tribal designations, the complexity of their political relations with the U.S. government is comparable to that of Native American tribes.  

Their statuses vis-à-vis the federal government were determined by century-old Insular Cases, a series of Supreme Court decisions, which many critics considered racist.

“The idea that Congress has unrestricted plenary power over U.S. territories is not grounded in the text or history of the U.S. Constitution,” Weare said. “But until now the federal government’s reliance on this near-unlimited power has never been questioned by any federal judge, much less a Supreme Court justice.”

Adi Martinez Román, co-director of Right to Democracy, said all five U.S. territories—Guam, the Northern Marianas, American Samoa, Puerto Rico and the U.S. Virgin Islands—have consistently rejected the federal government’s “exercise of undemocratic, unchecked power” over the local communities.

“The repudiation of this plenary power by these two conservative Justices is timely as we approach the 250th anniversary of the Declaration of Independence and consider what ‘consent of the governed’ means for people in U.S. territories who have been denied self-determination for over 125 years,” Roman said.

In his written opinion, Gorsuch said the court, lacking a legal basis for upholding the federal government’s limitless plenary power over native tribes, “ultimately resorted to archaic colonial prejudices nowhere found in our 

republican Constitution.”

The court ruled that the Major Crimes Act should be left to stand because “Indian tribes are the wards of the nation” and “dependent on the United States for their daily food.”

Their “very weakness and helplessness,” the court said, imposed a “duty of protection” upon Congress that came with a corresponding “power.”

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