For decades, Indian country has sought out nominees for the federal courts and the U.S. Supreme Court who have deep knowledge of federal Indian law and experience adjudicating real-world cases involving tribal governments and Indian people. In Neil Gorsuch, we have such a jurist.
Even those who feel compelled to speak against this nominee readily concede that his academic background (Columbia, Harvard and Oxford), his career (law clerk to two Supreme Court justices, private law firms, U.S. Department of Justice, and now a Judge on the Tenth Circuit Court of Appeals), and his even-keeled temperament are world-class.
The American Bar Association’s (ABA) Standing Committee on the Federal Judiciary unanimously gave Judge Gorsuch a “well qualified” rating – the highest possible rating from the ABA.
From a tribal perspective, Judge Gorsuch’s personal profile and background are just as important as his impeccable education and legal career.
Geographic diversity is not one of the features of the current makeup of the Supreme Court: of the eight sitting justices, five hail from New York, two from California, and one from Georgia. Neil Gorsuch has served on the Denver-based Tenth Circuit since 2006. As a native Coloradan with proclivities to the outdoors, he is known to be as an avid hunter, fisherman, hiker and adept skier.
This, by, itself is important because as a westerner, Judge Gorsuch understands the importance of federal lands, water, energy and natural resources to Indian tribes and all communities in the west. Sitting on the Tenth Circuit, Judge Gorsuch’s geographical scope is large and covers the states of Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming – these states alone include 76 Indian tribes.
During the hearings before the Senate Judiciary Committee, Judge Gorsuch was asked whether there was anything in his record suggesting he would not rule just for “big corporations” but would, in fact, support “the little guy.” Judge Gorsuch responded by citing three Indian law decisions he wrote which favored the tribal litigants. One of them, Ute Indian Tribe v. State of Utah (10th Cir. 2015), involved the unlawful prosecution of tribal members in state court for conduct on tribal lands. Judge Gorsuch’s decision stressed the need for federal protection of tribal sovereignty and stated that “…the harm to tribal sovereignty in this case is perhaps as serious as any to come our way in a long time.”
Another, Fletcher v. United States (10th Cir. 2013), involved efforts by members of the Osage Nation to secure an accounting of their Indian trust funds. Judge Gorsuch and the court held that the common law trust duties apply as long as consistent with congressional intent as reflected in statute. Rejecting the Interior Department’s interpretation of the Indian Trust Asset Management Act of 1994, Gorsuch invoked the Indian canon of construction to hold that “statutory ambiguities in the field of trust relations must be construed for, not against, Native Americans.”
In addition to favorable decisions on jurisdiction, tribal sovereignty and trust administration, Judge Gorsuch also authored Yellowbear v. Lampert (10th Cir. 2014), a case involving access to a prison sweat lodge by an enrolled member of the Northern Arapaho Tribe housed in a Wyoming prison. The District Court ruled in favor of prison management who claimed that providing access to the sweat lodge was too costly and burdensome. On appeal, Judge Gorsuch reversed the lower court and remanded the case instructing that the prison management’s generalized claims of cost and burdens are not enough to deny the prisoner’s access to the sweat lodge.
These are only three of Judge Gorsuch’s decisions. For the past 11 years, Gorsuch has participated in some 2,700 cases, including a number of cases involving tribal governments and tribal members.
After exhaustive research into Judge Gorsuch’s background, career and jurisprudence, on March 24, 2017, the National Congress of American Indians and the Native American Rights Fund issued a joint letter of support for the confirmation of Judge Gorsuch. As have dozens of other tribes across the country, the Quapaw Tribe of Oklahoma issued its own letter of support for Judge Gorsuch.
Some have expressed concerns over what they view as Judge Gorsuch’s antagonism to federal agencies and his stated opposition to rendering unfettered discretion to those agencies. That is fair, but as the elected chairman of a federally-recognized Indian tribe, I must say that my tribe spends the bulk of its time and resources pushing back against federal agencies that are constantly over-reaching. I am talking about the BLM, HUD, EPA, the National Labor Relations Board and others. Most tribes have the same experience.
Likewise, some in Indian country, and many in the United States Senate, may reflexively reject Judge Gorsuch because he was nominated by a president for whom they neither campaigned nor voted.
It bears remembering that in 2006, the Senate approved Neil Gorsuch’s nomination to the Tenth Circuit by a vote of 99 to 0, including many Democrats who are still in the Senate and who evidently today oppose Gorsuch’s nomination to the high court.
Any intellectually honest review of this nominee, his background, his education and his stellar career as an attorney and now a judge on the Denver-based Tenth Circuit Court of Appeals, should lead to overwhelming, if not unanimous, support in the United States Senate.
We tribal leaders have long called for a nominee fitting Judge Gorsuch’s profile and mettle, and now we have the opportunity to lend our support to him and to his nomination to the highest court in the land.
John L. Berrey is the Chairman of the Quapaw Tribe of Oklahoma (O-Gah-Pah).