Supreme Court news: Gorsuch the justice ‘most committed’ to Native American sovereignty
Kaelan Deese
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Supreme Court Justice Neil Gorsuch on Thursday reaffirmed his role as the ardent defender of Native American rights on the nine-member bench, writing dozens of pages in a pair of opinions about why “Tribes enjoy a unique status in our law.”
Gorsuch’s consideration of Native American issues was on display in two rulings, including one that upheld the Indian Child Welfare Act, a 1978 law that sought to thwart the separation of Native American children from their tribes.
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He concurred with Justice Amy Coney Barrett’s 7-2 majority opinion in Haaland v. Brackeen by adding 38 pages of his own, saying the law “did not emerge from a vacuum” by citing the “mass removal” of Native American children from their families between the 1950s and 1970s.
“No doubt, ICWA sharply limits the ability of States to impose their own family-law policies on tribal members. But as we have seen, state intrusions on tribal authority have been a recurring theme throughout American history,” Gorsuch wrote.
In a separate 8-1 opinion authored by Justice Ketanji Brown Jackson, Gorsuch broke from the liberal justice’s majority ruling that said the U.S. Bankruptcy Code overrides the immunity of all governments, “including the federally recognized Indian tribes.”
Gorsuch’s scathing dissent was longer than her full 16-page decision.
“Tribes enjoy a unique status in our law. Because this reading of the statute is itself (at worst) a plausible one, I would hold that the Bankruptcy Code flunks this Court’s clear-statement rule and reverse,” he wrote in his 17-page dissent.
Kirk McGill, special counsel at the Oklahoma-based law firm Hall Estill, told the Washington Examiner it’s important to remember that Gorsuch previously sat on the U.S. Court of Appeals for the 10th Circuit, which oversees matters in “big Indian states” including Colorado, Oklahoma, and Wyoming.
“He sat on the circuit court that had to decide those issues. And so he has been exposed to Indian law, and the issues surrounding that for a long time. If you look at his concurrence in Brackeen, it’s all about the history of the ICWA,” McGill said.
Several legal scholars also took to Twitter to recognize the justice’s commitment to Native American sovereignty.
“Gorsuch is proving one of the most committed and consistent voices for Native American rights in the Court’s history,” George Washington University law professor Jonathan Turley tweeted.
In 2020, Gorsuch wrote what was arguably the most consequential and important opinion pertaining to Native Americans in the past 100 years, with a 5-4 ruling holding that much of eastern Oklahoma is on tribal land.
“On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever,” Gorsuch wrote at the beginning of his McGirt ruling.
Even while he was on the 10th Circuit, Gorsuch consistently gave favorable rulings to tribes.
Gorsuch was tapped in January 2017 by former President Donald Trump to succeed the late Justice Antonin Scalia. At the time of his consideration, Native American leaders offered support to the then-nominee.
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Alvin Not Afraid Jr., chairman of the Crow Tribe Executive Branch, sent a letter to Senate leadership in 2018 stating Gorsuch’s knowledge of federal Indian law was of significant importance to the high court.
“Judge Gorsuch’s record includes a great number of decisions involving tribal governments, tribal people, and tribal interests, and he has consistently demonstrated not only a sound understanding of Federal Indian Law principles, but a respect for our unique and closely held cultural values,” the chairman wrote in the letter.