Also...a new era of treatymaking! Wouldn't that be something! 8/8

Which leaves me wondering 🤔 how much Thomas agrees with the idea these two points. I'd assume he would prefer to describe the doctrine as a mess without saying it's *because of prejudice* and that he'd say states, not tribes, should come out with more power. 7/8

Notably, this Gorsuch opinion tracks what I'd expect are *his answers* to why this happened (racism/prejudice) and what happens if plenary power falls (tribes have power to prosecute their own citizens unless they ask feds for help via treaty).
Thus, it's interesting Thomas signed onto this. 6/8

So this dissent isn't a huge surprise since it says something we already know about what both men think. They both think plenary power (1) lacks constitutional footing and (2) is inconsistent with Tribal sovereignty. BUT.... 5/8

Thomas also doesn't like plenary power. He's said so since a famous dissent in 2004 (US v. Lara). There's two big reasons for this. (1) There's not enough constitutional textual support for Congress having such a huge power. (2) Either tribes are sovereigns OR Congress has unlimited power. 4/8

A part of Federal Indian Law that Gorsuch doesn't like is the rule that Congress has "plenary power" over tribes to do allllmost anything it wants (good or bad). 3/8

Gorsuch is very pro-Native Tribes. Simply put, he seems to (1) actually believe Tribes are real sovereigns and take seriously the independence, respect, and power that comes with that; and (2) know Federal Indian Law (FIL) doctrine real well, even the parts that undermine point (1). 2/8

@evanbernick.bsky.social