Page:Haaland v. Brackeen.pdf/109

Rh Nevertheless, Cherokee Nation’s suggestion was picked up decades later in United States v. Kagama, 118 U. S. 375 (1886)—the first case to actually apply a broader, unenumerated power over Indian affairs. In Kagama, the Court considered the Major Crimes Act of 1885, which, similar to the 1817 Act held unconstitutional by Justice McLean while riding circuit, regulated crimes on Indian lands committed by Indians; the Major Crimes Act differed from the 1817 Act only in that it extended to crimes committed against other Indians. See §9, 23 Stat. 385. Similarly to Justice McLean’s Bailey opinion, the Court first rejected the idea that the Commerce Clause could support the Act—reasoning that “it would be a very strained construction of th[e] clause, that a system of criminal laws for Indians … was authorized by the grant of power to regulate commerce with the Indian tribes.” Kagama, 118 U. S., at 378–379.

But the Court determined that the Major Crimes Act was constitutional nevertheless. As the Court first noted, the Act was “confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation.” Id., at 383. The Court then cited several cases arising from congressional regulations of Indian lands located within federal territories, noting that Congress had previously punished offenses committed on such lands. See id., at 380 (citing United States v. Rogers, 4 How. 567, 572 (1846); Murphy v. Ramsey, 114 U. S. 15, 44 (1885); American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828)). Next, the Court reasoned that the Act “does not interfere with the process of the State courts within the reservation, nor with the operation of State laws upon white people found there.” 118 U. S., at 383. Instead, the Act’s “effect[s are] confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation.” Ibid.

That sort of language seems to view Indian lands as akin to quasi-federal lands or perhaps “external” to the Nation’s