At his confirmation hearing last week, President Trump’s nominee to the U.S. Supreme Court, Neil Gorsuch, said something remarkable about Indian country and the rule of law in America:
"Tribes are, as you know, sovereign nations … Our constitutional order affords this body considerable power in dealing with those sovereign nations by treaty or otherwise," testified Judge Neil Gorsuch at his confirmation hearing. While nothing extraordinary from a Native advocate, this statement says much about the experience and understanding of Indian law by Judge Gorsuch that makes him worthy of Indian country support.
We have long known that the Supreme Court is an important influence over Indigenous Peoples in the United States and our sovereign tribal governments. Perhaps foremost, the Court has authority to determine what power the federal, state, and local governments have in our territories and whether those governments can interfere with our sovereignty and self-governance within our territories and beyond.
During his judicial career on the Tenth Circuit Court of Appeals based in Denver, he has handled numerous cases involving Indian tribes and Indian people. While not a perfect record from a Native advocate’s perspective, he has not hesitated to support tribal governments in clashes with state governments and assisted individual Indians being victimized by the federal officials.
In Ute Indian Tribe v. Myton, he wrote the Circuit Court decision that upheld the Ute Tribe’s reservation boundaries after decades of effort by the state and local governments to have them judicially disestablished. In doing so, Judge Gorsuch upheld the removal of the lower court judge who was obviously discriminating against the tribe and its legal position.
In Fletcher v. U.S., Judge Gorsuch upheld a trust asset accounting demand by an Osage headright owner against the federal government and, in doing so, reaffirmed the canon of construction that ambiguities in the federal statues must be resolved in favor of the Indians.
And, what Judge Gorsuch testified was one of his “top ten” cases, Yellowbear v. Lampert, he wrote that the religious freedom rights of a Native prisoner to participate in sweat lodge ceremonies had been illegally denied by federal prison officials.
Federal appellate judges are not supposed to be sympathetic figures, instead being referees dedicated to ensuring conformity to the law. But one cannot help but appreciate the complex empathy for the human condition as written by Judge Gorsuch in the first paragraph of his Yellowbear decision:
“Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murdering his daughter. With that much lying behind and still before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the sincerity of his religious beliefs or that they are the reason he seeks access to his prison’s sweat lodge — a house of prayer and meditation the prison has supplied for those who share his Native American religious tradition. Yet the prison refuses to open the doors of that sweat lodge to Mr. Yellowbear alone, and so we have this litigation. While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them — at least in the absence of a compelling reason. In this record we can find no reason like that.”
There is more written by Judge Gorsuch, and not all of it favors tribal interests. Judge Gorsuch has a conservative judicial philosophy, and so his default position is to read the constitution and laws that he must interpret in a strict, limited and literal fashion. (For further analysis of Judge Gorsuch’s record, I recommend NARF attorney Richard Guest’s review).
I suggest that judicial conservatism is the best judicial philosophy for protecting tribal sovereignty and the unique status of Indigenous Peoples under American law. Why? Because our nations exist as pre-constitutional sovereigns in a political relationship with the U.S. government, that the U.S. Constitution expressly references the existence of our nations, and because the developed body of federal case law still generally respects that sovereignty in the face of conflicts with the federal, state, and local governments. A judge that reads the Constitution in a way that respects its language must accept that Indian nations are sovereigns with authority to exercise power over all persons within tribal lands at the exclusion of state and local governments. This approach differs greatly from the recent tendency of the Court to view tribal sovereignty as limited with no authority to regulate non-Indians who commit crimes or do business within tribal lands.
And that’s the problem Indian country must be concerned with, the recent trend of the Supreme Court to disregard the Constitution and decades of established federal judicial precedent to view Indians as a racial, not political, class of people, and to let the federal, state, and local governments undermine tribal sovereignty in our sovereign territories. If Judge Gorsuch is confirmed and can help lead the court to respect the Constitution, Indian treaties, and the Court’s precedent that respects tribal sovereignty, then Indian country and Native people will be much better off in the long run.
Of course, no one has a crystal ball, and we have no way of knowing how Judge Gorsuch will rule in Indian law cases if he becomes Associate Justice Gorsuch. But if his past is any guide, there is a strong likelihood that he will help stabilize the court’s Indian law jurisprudence in our favor.
I’m well aware that the country is politically divided and that any judge nominated by President Trump is presumed unacceptable to most politically active Indians and tribal leaders. But I suggest we set aside the distraction of worrying about the White Man’s political battles with each other right now and focus on what is best for our Native people in the long run.
If Judge Gorsuch is rejected – as Senate Democrats seem dedicated to ensure that – will the next nominee be better for Indian country? The fact is that Judge Neil Gorsuch is likely the most qualified and knowledgeable nominee for the Supreme Court ever. I don’t think we can take the chance that the next nominee will know more about Indians, Indian tribal sovereignty, or Indian law than Judge Gorsuch.
Indian country should consider supporting him and asking their Senators to vote for his confirmation based on both his favorable Indian law record and the risk that the alternative could be much worse.
Robert Odawi Porter is a former President of the Seneca Nation of Indians and an attorney in Washington, D.C. representing sovereign tribal nations and native-owned businesses. The views expressed are the author’s and not necessarily the views of any client.