Exhibiting a split with Democratic allies in Congress, several tribes are going on record supporting Judge Neil Gorsuch’s nomination to become an associate justice to the U.S. Supreme Court, despite coalescing Democratic plans in the Senate to filibuster him.
“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,” wrote Alvin Not Afraid Jr., chairman of the Crow Tribe Executive Branch, in a recent letter to Senate leadership.
“The importance of having a sitting Justice on the U.S. Supreme Court who understands Federal Indian law and treats tribes fairly cannot be overstated, since it is this Court that is all too often called upon to define, recognize, and in some cases, limit the rights we wield as separate sovereigns within the context of this great nation we all live under.”
Added Mark Azure, president of the Fort Belknap Indian Community Council, in another recent letter to Senate leaders: “[W]hile we do not expect that Judge Gorsuch will agree with tribal interests on every issue, we also believe that he is immensely well qualified and we are confident that Judge Gorsuch is a mainstream, commonsense Westerner who will rule fairly on Indian country matters.”
Gorsuch, a judge for the U.S. Court of Appeals for the Tenth Circuit since 2006, needs 60 votes to be confirmed, but Senate Democrats have expressed consternation about a variety of his past rulings, and they are especially concerned about whether he would rule to overturn Roe v. Wade. Democrats are widely angry, too, that Republicans did not allow a vote on President Barack Obama’s nomination of Judge Merrick Garland to the Supreme Court in 2016 after the passing of Justice Antonin Scalia. Many, including Sen. Bernie Sanders of Vermont – a major tribal champion of late – have said they will vote against his nomination.
Because Gorsuch, 49, can’t get to 60 votes without Democratic support given the current makeup of the chamber, it is not likely under current Senate rules that he would be confirmed.
However, Senate Majority Leader Mitch McConnell and the Republican majority could overturn the requirement for 60 votes and choose to go for a simple majority of 51 votes. That action – known as the “nuclear option” – would overturn long-standing tradition in the Senate, but Republicans are willing to do so, they say, after Senate Democrats in 2013 when in control of the chamber changed the rules to make it easier to confirm federal appointees of Obama that had been stalled due to Republican opposition. President Donald Trump is supportive of the nuclear option in the case of Gorsuch.
Tribal allies of Gorsuch, including leaders with the National Congress of American Indians and the Native American Rights Fund, have made clear to the White House and Senate that they fully support Gorsuch because they see him as a pro-tribal sovereignty judge.
"When compared to Justice Scalia’s Indian law record, the conclusion drawn is that Indian tribes will likely have a better chance on their cases with Gorsuch on the court," the Native American Rights Fund offered in a recent analysis of Gorsuch’s record.
Gorsuch himself pointed to his past work on tribal and Indian cases during his confirmation hearings before the Senate Judiciary Committee the week of March 20.
"Tribes are, as you know, sovereign nations," Gorsuch said. "Our constitutional order affords this body considerable power in dealing with those sovereign nations by treaty and otherwise.”
He later added: "Our history with Native Americans is not the prettiest history."
According to paperwork the judge submitted to the Senate Judiciary Committee, as highlighted by Sen. John Hoeven (R-N.D.), chair of the Senate Committee on Indian Affairs, Gorsuch lists Yellowbear v. Lampert as one of the 10 most significant cases over which he has ruled. That case saw the judge uphold an American Indian prisoner’s right to access to a sweat lodge.
“Neil Gorsuch will be a fair Supreme Court Justice for all of America, including Indian country,” Hoeven said in a statement issued March 15 after he and a group of tribal leaders visited the White House to share their support.
“Judge Gorsuch has a strong track record and considerable experience dealing with federal Indian law, having written the opinion on 18 Indian law cases,” Hoeven added. “He has shown respect for Indian religious freedom and tribal sovereignty.”
Hoeven said that the following tribal nations and groups were represented at the White House meeting on Gorsuch and tribes: Navajo Nation, Chickasaw, Central Council of Tlingit and Haida Indian Tribes of Alaska, Choctaw Nation, Caribou Tribe, as well as the Native America Rights Fund and the National Congress of American Indians. The press was not invited to cover the meeting, according to Hoeven’s office. The White House has not responded for requests for comment about the meeting.
On March 27, Sen. Steve Daines (R-MT) announced that the Assiniboine and Sioux Tribes of the Fort Peck Reservation, as well as the Fort Belknap Indian Community and the Crow Tribe had endorsed Gorsuch.
Osage Nation Congresswoman Shannon Edwards, 10th Circuit Representative to the American Bar Association’s Standing Committee on the Federal Judiciary, also testified in favor of Neil Gorsuch in front of the Senate Judiciary Committee during his confirmation hearings last week.