At the beginning of the week, Justices Neil Gorsuch and Clarence Thomas expressed their dissatisfaction with the Supreme Court’s decision not to address the federal government’s extensive control over Native American tribes’ internal affairs. They equated the current state of affairs to some of the most notorious decisions in the Court’s history.

Gorsuch’s opinion, which Thomas supported, was part of a recent orders list. The Supreme Court chose not to review the case submitted by Quentin Veneno Jr. against the United States, declining to grant a writ of certiorari.

Veneno’s petition urged the justices to overturn the 1886 decision in United States v. Kagama. He argued that Congress does not have the constitutional authority to criminalize actions that occur between members of the same tribe on tribal land. Alternatively, he sought clarification on the constitutional basis for Congress to criminalize such actions.

The Kagama ruling upheld the Major Crimes Act of 1885, which granted federal courts jurisdiction over major offenses such as murder, manslaughter, and rape committed by Native Americans on tribal land.

The Court’s decision justified the ruling by depicting Native American tribes as “wards of the nation,” reliant on the United States for sustenance and political rights, while receiving no protection or allegiance from the states.

“Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power,” the 1886 opinion said, to Gorsuch’s dismay. “This has always been recognized by the executive, and by Congress, and by this Court, whenever the question has arisen.”

Gorsuch, an unsurprising advocate on the issue, said the Kagama decision and the “plenary power” over tribal affairs that the government has asserted ever since are based on a theory rooted in “archaic prejudices” that “should make this Court blush” — like the notion that tribes are too “weak” to dole out justice for major crimes themselves.

“This Court is responsible for Kagama, and this Court holds the power to correct it. We should not shirk from the task,” Gorsuch scolded, noting that the tribal courts have not been “completely displaced” but saw their “traditional sovereign tribal powers” curtailed through Kagama on the strength of “archaic colonial prejudices nowhere found in our republican Constitution and wholly antithetical to it.”

Gorsuch ripped the silent majority for declining to “confront decisions, like Kagama,” which “cannot be explained by the Constitution, but only by the atmosphere of their times.”

“I regret that the Court declines to take up that challenge today. 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,” the justice went on. “If this Court were to overturn Kagama, Tribes could exercise their sovereign powers to address ‘major’ crimes among Indians, something this Court has no business assuming they are too ‘inferior’ or ‘weak’ to do without supervision from a ‘superior’ people.”

In a parting shot, Gorsuch likened the Kagama decision to Plessy v. Ferguson, which once upheld the constitutionality of racial segregation before it was overturned, and Korematsu v. United States, which justified internment camps for Japanese Americans during World War II.

“Doubtless, as the government stresses in its opposition to this petition, many of this Court’s plenary power decisions have stood for years.  But the same was once said in defense of Plessy v. Ferguson and Korematsu v. United States,” Gorsuch concluded. “And, as with those cases, our plenary power decisions demand reconsideration if this Court is ever to bring coherence to the law and make good on its promise of fidelity to the Constitution.”