Neil Gorsuch’s Lonely Quest to Fix Indian Law

When Crow Dog’s case reached the high court, the justices reaffirmed tribal sovereignty by concluding that federal courts did not have jurisdiction over a purely internal matter for the Lakota. (Crimes involving nonmembers on tribal land or occurring between tribal members on nontribal land could and can still be prosecuted.) In response, Congress enacted the Major Crimes Act of 1885, or MCA, which explicitly extended federal criminal jurisdiction to tribal lands for “major” crimes like murder, manslaughter, rape, and other felonies.

Three months after the MCA’s enactment, a Yurok man named Kagama killed another man over a property dispute on tribal land in northern California. Federal prosecutors indicted him for murder under the new law. In response, Kagama’s lawyers challenged the MCA’s constitutionality. They argued that Congress had no jurisdiction over crimes between tribal members on tribal land. The Indian commerce clause, they explained, could not be read to allow prosecutions for crimes that are not ordinarily prosecuted by the federal government.

The court’s opinion in United States v. Kagama was also unanimous. This time, however, it dealt a severe blow to tribal sovereignty. Justice Samuel Miller, who wrote for the court, channeled the biases of his era by describing tribal nations as existing in a state of “pupilage” under American civilization, reducing them in the eyes of the law from largely autonomous nations to colonial subalterns.