After Nearly One Year, SCOTUS Denies Cert In Vehicle To Overrule Kagama

On July 26, 2024, a cert petition was filed in Veneno v. United States. The Petitioner asked the Court to overrule United States v. Kagama, a precedent that established Congress’s “plenary” powers over Indian tribes. The government promptly waived its response on August 8, 2024, I think in an effort to get it into the long conference. The Court requested a response on August 20, 2024. After four extensions, the SG filed its opposition on November 20, 2024.

The petition then entered what I’ve called docket purgatory. On December 5, 2024, it was scheduled for the January 10, 2025 conference. The case was then rescheduled seventeen times, with the last reschedule coming on June 10, 2025. The case was then distributed to the long conference on September 29, 2025, but no action was taken. The case was relisted three more times.

Finally, on November 10, 2025, the Court put the petition out of its misery, and denied cert. Justice Gorsuch wrote a dissent, which was joined by Justice Thomas.

It seems that Justice Gorsuch spent about eight months trying to get more votes for certiorari, but came up empty handed. By the time the case went to the long conference, it became clear no one else would join, so Gorsuch prepared his dissent from denial.

There is an extended discussion of the discovery doctrine, which most law students read about in Property class.

Next, and leaving the Constitution behind, the Kagama Court gestured to the European doctrine of discovery. 118 U. S., at 381–382. But our Constitution makes no mention of that doctrine. Nor, at least as conceived by the Marshall Court shortly after the Nation’s founding, does the doctrine imply plenary federal power over internal tribal affairs. As that Court put it, even after the European “discovery” of North America, Tribes remained “distinct, independent political communities retaining their original natural rights,”with only “the single exception” that they could have no “intercourse with any other European potentate than the first discoverer.” Worcester, 6 Pet., at 546, 559 (emphasisadded). From this, one might glean that the discovery doctrinemeant one European nation could assert certain exclusive “rights” of intercourse with Tribes as “against all other European” claimants. R. Clinton, The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-State Conflict Over the Management of Indian Affairs, 69 B. U. L. Rev.329, 332, n. 6 (1989). Perhaps, too, the doctrine meant that a private party could not buy tribal land without approval from the relevant European national authority. Johnson’s Lessee v. McIntosh, 8 Wheat. 543, 604–605 (1823). But even on its own terms, the Marshall Court appreciated, the discovery doctrine did nothing to strip Native American Tribes of “the rights which belong to self government.” Worcester, 6 Pet., at 580; see also K. Richotte, The Worst Trickster Story Ever Told: Native America, the Supreme Court, and the U. S. Constitution 26–27 (2025); N. Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 208–210 (1984).*

*Even as articulated by the Marshall Court, the discovery doctrine leaves much to be desired. If “discovering” a land is enough to secure certain rights over it, one might wonder why Native Americans hadn’t obtained those rights over their lands long before Europeans arrived. As one commentator had already asked by the time of the Nation’s founding: “If sailing along a coast can give a right to a country, then might the people of Japan become, as soon as they please, the proprietors of Britain”? R. Price, Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America 23 (1776) (emphasis deleted).

During the tariff case, Justice Gorsuch asked Neal Katyal a question about the Indian Commerce Clause. I could tell this issue was on his mind.