The Mystery of Gorsuch’s Passionate Support for Tribes

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During Justice Neil Gorsuch’s six years on the US Supreme Court, the justices have faced 10 cases involving the rights of Native American individuals or tribes. Every time, Gorsuch has voted in favor of Indian rights — including thrice in the past two weeks. Whether in the majority or the minority, he defends tribal sovereignty with power and passion. 

Many have professed amazement that so “conservative” a judge would defend the rights of Indigenous people. It should instead serve as a warning against our tendency to essentialize the justices, to carve out categories of “conservative” and “liberal” to fit our prejudices.

The strength with which Gorsuch writes enlivens our debates and has much to teach us about subjects we often know less about than we imagine. Writing for the 5-4 majority in McGirt v. Oklahoma, the Court’s controversial 2020 ruling that a large chunk of Oklahoma still comprises the Creek Reservation established in 1833, he rejected the argument that the state’s longstanding assertion of authority over the territory in question should be taken into account: “To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”

Two years later, when the majority backed off the implications of the ruling, Gorsuch’s dissent, signed by three other justices, was sharp: “Tribes are not private organizations within state boundaries. Their reservations are not glorified private campgrounds. Tribes are sovereigns.” He reminded readers that in the early 19th century, Chief Justice John Marshall stood up heroically to President Andrew Jackson. Now? “Where this Court once stood firm, today it wilts.”

Earlier this month, Gorsuch voted with the majority to uphold the provision of federal law that requires that American Indian children in the child welfare system be placed with family members or tribal caretakers if possible. In a concurring opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, he brushed aside concerns about discrimination, citing “the bedrock principle that Indian status is a political rather than racial classification.”

As has become his trademark, he spent a large chunk of his opinion setting out history that most of us only think we know. For example, he waxed indignant as he described the Indian boarding schools that were set up in the late 19th century:

“Upon the children’s arrival, the boarding schools would often seek to strip them of nearly every aspect of their identity. The schools would take away their Indian names and give them English ones. The schools would cut their hair — a point of shame in many native communities. … Resistance could invite punishments that included ‘withholding food’ and ‘whipping.’ ”

So strong is Gorsuch’s language that activists have taken to quoting him. In McGirt, he explained that the court was simply decreeing that the tribe remained in control of “the land these treaties promised.” One scholar responded that Gorsuch had penned “a five-word bumper sticker slogan for what many Indigenous nations would likely demand in a Third Reconstruction.”

Often Gorsuch strikes an almost elegiac note. Concurring in the aforementioned case upholding the preference for placing Indian children with Indian families, he warned that the alternative “presented an existential threat to the continued vitality of Tribes — something many federal and state officials over the years saw as a feature, not as a flaw.”  Writing for the four dissenters in this week’s decision denying a plea by the Navajo Nation to clarify the tribe’s water rights under its treaty with the federal government, Gorsuch lamented that the Supreme Court’s decision “leaves the Navajo in a familiar spot” — “they must again fight for themselves to secure their homeland and all that must necessarily come with it.” And, as always, he supplied context, pointing out that tribe members living on the reservation make do with about one-seventh the daily water ration of the rest of us.

His staunch support for tribal rights has created a buzz in the legal world — and raised questions about the basis of his support. But at this point, the bigger mystery is why commentators keep expressing surprise.

As others have noted, a number of tribes endorsed Gorsuch’s confirmation when the left was busy opposing it. Questioned by members of the Senate Judiciary Committee, Gorsuch offered brief versions of what he would later write as a justice. “Tribes are, as you know, sovereign nations,” he said. He criticized the federal government’s treatment of Native Americans and added “they’ve had a long time trying to control their tribal lands.”

In his 2019 book A Republic if You Can Keep It, casting about for an example of the proposition that all administrative actions should be tested before an independent judge, Gorsuch settles on an opinion he wrote as an appellate judge, upholding the right of a Native American inmate to leave protective custody in order to access the prison’s sweat lodge to practice his faith.

Everybody has a theory about what moves him. The most common explanation is that Gorsuch votes as he does because, as a Westerner, he has a special understanding of Native American concerns. But his fellow Westerners William Rehnquist and Byron White joined the court’s dreadful 1990 opinion sharply curtailing Native American religious rights, and Westerner Sandra Day O’Connor concurred in the judgment. It’s simply not possible to imagine Gorsuch siding with a majority that conceded that its approach “will place at a relative disadvantage those religious practices that are not widely engaged in” and then defended that outcome as the “unavoidable consequence of democratic government.” Should the issue arise again, he would surely treat us to a 20-page seminar on the nation’s efforts to extinguish the religions of its indigenous population.

Unless Gorsuch writes a memoir, we’ll probably never know the source of his remarkable empathy for tribal sovereignty. But those of us who agree with him about its importance are glad he’s up there fighting.

More From Stephen L. Carter at Bloomberg Opinion:

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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