By my rely, Justice Gorsuch has written 9 opinions in instances by which an Indian tribe or member was a celebration. My methodology is imperfect–I searched the Supreme Court docket Database for “+Gorsuch & Indian”. However I believe I captured the entire related opinions. (Please e-mail me if I’m lacking any.) This complete consists of majority opinions, concurrences, in addition to dissents.
In every of those 9 instances, Justice Gorsuch dominated in favor of the Indian tribe or member.
Right here is my record:
- Higher Skagit Indian Tribe v. Lundgren (2018)—Justice Gorsuch wrote majority opinion discovering in favor of tribal sovereign immunity. (Justices Thomas and Alito dissented).
- Washington State Division of Licensing v. Cougar Den (2019)—Justice Gorsuch wrote a concurrence, joined by Justice Ginsburg, supporting enforcement of Indian treaty. (Chief Justice Roberts and Justices Thomas, Alito, and Kavanuagh have been in dissent).
- McGirt v. Oklahoma (2020)—Justice Gorsuch wrote majority opinion discovering that Congress didn’t disestablish Creek Reservation in Oklahoma. (Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh have been in dissent).
- Yellen v. Confederated Tribes of Chehalis Reservation (2021)—Justice Gorsuch wrote a dissent, joined by Justices Thomas and Kagan, discovering that for-profit Alaska Native Firms don’t qualify as “Tribal Governments” for functions of CARES Act funding. Right here, Gorsuch didn’t rule towards a Tribe, as a result of, in his view, ANCs usually are not truly tribes. Certainly, the Secretary of the Inside doesn’t record the ANCs as federally acknowledged tribes.
- Denezpi v. United States (2022)—Justice Gorsuch wrote a dissent, joined by Justices Sotomayor and Kagan, discovering that the Double Jeopardy Clause prohibits second prosecution for violating Code of Indian tribe.
- Ysleta Del Sur Pueblo v. Texas (2022)—Justice Gorsuch wrote majority opinion discovering that federal regulation solely bans on tribal lands these gaming actions additionally banned in Texas. This was a victory for Tribal gaming. (Chief Justice Roberts, and Justices Thomas, Alito, and Kavanaugh have been in dissent).
- Oklahoma v. Castro-Huerta (2022)—Justice Gorsuch wrote a dissent, joined by Justices Breyer, Sotomayor, and Kagan, discovering that the states don’t have concurrent jurisdiction to prosecute crimes dedicated by non-Indians towards Indians in Indian nation.
- Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin (2023)—Justice Gorsuch wrote a solo dissent, discovering that the Chapter Code didn’t abrogate tribal sovereign immunity.
- Halland v. Brackeen (2023)—Justice Gorsuch wrote a concurrence, joined by Justices Sotomayor and Jackson, to offer “an understanding of the lengthy line of insurance policies that drove Congress to undertake ICWA.”
How can we clarify this 9-0 report? The standard line is that Gorsuch is a westerner. Adam Liptak explores this level within the Instances:
In a pair of opinions on Thursday, Justice Neil M. Gorsuch once more demonstrated that he’s the fiercest proponent of Native American rights on the Supreme Court docket. That doesn’t shock individuals who knew him when he served on the federal appeals court docket in Denver. “He is from Colorado,” mentioned John E. Echohawk, govt director of the Native American Rights Fund. “He is the one Westerner on the court docket. He is aware of these points. He is aware of these tribes.”
I agree with Mike Dorf that this clarification isn’t completely persuasive:
At this level, Justice Gorsuch’s sympathy for American Indians and Indian tribes can’t be doubted. Its precise supply is a little bit of a thriller. I’ve seen it mentioned that, as with Douglas, it comes from the truth that Gorsuch is a westerner. However that is hardly a passable clarification. So have been Bryon White, William Rehnquist, and Sandra Day O’Connor, none of whom was a particular champion of Indian rights.
Maybe it is pointless to take a position. Individuals attribute Justice Kennedy’s sympathy for homosexual rights to his private friendships, however that solely raises the query of why he was open to such friendships. Why any of us develops the actual views we now have is a posh and maybe unanswerable query.
Justice Gorsuch solely writes opinions favoring Indian tribes and members. And he’s persistently on the opposite aspect of Justices Thomas and Alito. Furthermore, Gorsuch writes with such a ardour for the plights of native folks. For no matter cause, Justice Gorsuch is dedicated to the trigger. To paraphrase his dissent in Lac du Flambeau, in a case regarding Indian rights, when Gorsuch takes the pen, it’s as “good as a possession arrow favoring” the Indian tribe or member.
