Best friend of the tribes: Justice Neil Gorsuch

WASHINGTON, DC—One of the first acts of the Trump presidency in 2017, was to nominate Neil Gorsuch to fill a vacancy on the Supreme Court created by the untimely death of Antonin Scalia. Considered a Conservative, and a strict Constitutionalist, the Gorsuch nomination drew the ire of the Democrat establishment, and they justifiably expressed alarm the Court was being loaded by Republican presidents with justices who might undo many of the social conscience rulings of the past sixty years.

In addition, liberal Ruth Bader Ginsberg was in poor health, and did not retire during the Obama years as many Democrats had hoped, which would have allowed for an Obama nomination instead of what was sure to be a Trump nomination in the years ahead. Ginsberg died in 2020, and sure enough, Trump nominated Amy Coney Barrett, former clerk for Scalia, and she has served on the Court since October of 2020. Factoring in a previous controversial Trump appointee from 2018, Brett Kavanaugh, and adding Conservative stalwarts Clarence Thomas, nominated by George H. Bush, and Samuel Alito and Chief Justice John Roberts, both nominated by George W. Bush, the Gorsuch and Barrett nominations appeared to have ratcheted the Court hard right and away from tribal interest, or so tribes and their liberal political allies, feared.

This definitely held true in 2022’s landmark Jackson v Women’s Health Organization, in which the Court, voting strictly along party lines, held that the Constitution does not confer a right to abortion. The Court returned to the states regulatory power over any aspect of abortion not mandated by federal law. Dissent consisted of only the three liberal justices: Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Given the distinct political division of the Court, tribes had little reason to believe that Gorsuch, Barrett or Kavanaugh would ever vote their way. Thomas and Alito would always vote against tribes, but what would motivate others to vote for tribes?

Born in 1967, Gorsuch spent his formative years in Colorado, before attending Georgetown Preparatory School in Bethesda, Maryland. After earning a law degree from Harvard, Gorsuch was a practicing attorney for 15 years, before accepting a scholarship to attend England’s Oxford University where he obtained a Doctor of Philosophy in jurisprudence. Whatever contributions this background had to the justice he would become in regard to tribes, by the time Gorsuch was nominated to the Court, his heart and mind were committed to the plight of tribes.

Gorsuch was on the Tenth District US Court of appeals from 2006-2017. One case that gives warning he would be responsive to tribal interest was one where he wrote the dissenting opinion. A.M.v Holmes concerned a 13-year-old student who was arrested for laughing and burping in class, a misdemeanor and considered a disruption of school activities. The family alleged this violated the child’s rights and the Tenth Circuit ruled the school officials and the arresting resource officer had qualified immunity. Gorsuch dissented, rightfully arguing that the New Mexico Court of Appeals had “long ago alerted law enforcement” that the behaviors similar to those committed by the 13-year-old in question were noises and diversions that previous law did not criminalize. This case indicated the sensitivity Gorsuch has for the powerless people battling large institutions.

Writing for the American Bar Association, John Dossett wrote: “Justice Gorsuch has significantly more experience with Indian law cases than other recent Supreme Court nominees. His opinions have commonly recognized tribes as sovereign governments and have addressed issues such as state police incursion onto tribal lands, sovereign immunity, religious freedom, accounting for trust funds, exhaustion of tribal remedies, and Indian Country criminal jurisdiction.”

Before he got to the Supreme Court Gorsuch had a history of siding with tribes. In 2015 he ruled favorably for the Ute Tribe in a jurisdictional case. In this ruling he displayed a style which would characterize all his future opinions. Gorsuch delved deep into the relevant history of the issue at hand, weaving a compelling foundation to back up his reasoning. In 2013 in Fletcher v the United States, Gorsuch again provided detailed history of the federal governments trust responsibility and ruled in favor of the Osage in their claim case, overturning the ruling of the District Court.

In the 2014 case of Yellow Bear v Lampert, Gorsuch wrote the unanimous opinion that a prison could not deny an inmate his right to practice his religion for just security or cost reasons.

Dossett wrote: “During his time on the Tenth Circuit, Gorsuch wrote 18 legal opinions and participated in an additional 42 cases relating to federal Indian law or Indian interests that provide a window into his views. Of course, as with any appointment to the Supreme Court, it is impossible to predict how Justice Gorsuch will decide cases in the future. It is encouraging, however, that Justice Gorsuch has significant experience with federal Indian law and appears to be both attentive to the details and respectful to the fundamental principles of tribal sovereignty and the federal trust responsibility. This level of familiarity is noteworthy on a Supreme Court where most of the justices came to the Court with much less experience.”

One aspect where Judge Thomas sided with tribes is Plenary Power, which for tribes, is the power of Congress to abrogate any treaty or agreement with any tribe at any time for any reason. Thomas said he could not find any section of the Constitution granting Congress such power. Should a case come before this Court, involving Plenary Power, it will be interesting to see how Thomas and Gorsuch rule.

Since Gorsuch joined the Court, tribes have benefited from his support. In March of 2019 Gorsuch joined the liberals in two cases: In Washington State department of Licensing v Cougar Den, the court ruled in favor of the Yakima Nation by a 5-4 vote. In another 5-4 vote, Herrera v Wyoming, the Court again ruled in favor of Crow tribal member Clayvin Herrera in a hunting rights case. The support of Gorsuch in these two cases was critical.

In the landmark McGirt v Oklahoma 2020 case, Gorsuch was again critical in the 5-4 vote that favored the Five Civilized Tribes. The Court ruled that regions designated previously as reservation, within those regions, tribal members were subject to federal law, not state law when committing offense. This would be partially overturned in 2022’s Oklahoma v Castro-Huerta, in a 5-4 decision, which gave some rights back to the state to prosecute, prompting this dissenting opinion from Gorsuch: “Where this court once stood firm, today it wilts.”

In 2022’s Ysleta del Sur Pueblo v Texas, Gorsuch joined the 5-4 majority in ruling against state regulation of tribal gambling.

Finally, in June 2023, the Court upheld the constitutionality of the 1978 Indian Child Welfare Act, in Haaland v Brackeen. Only Thomas and Alito voted against the ruling. Kavanaugh, joining the tribal side for once, wrote the majority opinion. But Gorsuch did a brilliant job detailing the history and struggles of tribes to hold together their families, culture, and maintain their identity and dignity.

There won’t be any more tribal rulings in 2023, but as the years go by tribes can bank on a justice who not only has their back, but Gorsuch has an understanding of Indian Law, and a comprehensive grasp of tribal history never before seen in a Supreme Court justice.

(Contact James Giago Davies at skindiesel@msn.com)

The post Best friend of the tribes: Justice Neil Gorsuch first appeared on Native Sun News Today.

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