Has Justice Gorsuch Ever Written An Opinion That Ruled Against An Indian Tribe or Member?

9-0.

By my count, Justice Gorsuch has written nine opinions in cases in which an Indian tribe or member was a party.  My methodology is imperfect--I searched the Supreme Court Database for "+Gorsuch & Indian". But I think I captured all of the relevant opinions. (Please email me if I am missing any.) This total includes majority opinions, concurrences, as well as dissents.

In each of these nine cases, Justice Gorsuch ruled in favor of the Indian tribe or member.

Here is my list:

1. Upper Skagit Indian Tribe v. Lundgren (2018) - Justice Gorsuch wrote majority opinion finding in favor of tribal sovereign immunity. (Justices Thomas and Alito dissented).
2. Washington State Department 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 were in dissent).
3. McGirt v. Oklahoma (2020) - Justice Gorsuch wrote majority opinion finding that Congress did not disestablish Creek Reservation in Oklahoma. (Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh were in dissent).
4. Yellen v. Confederated Tribes of Chehalis Reservation (2021) - Justice Gorsuch wrote a dissent, joined by Justices Thomas and Kagan, finding that for-profit Alaska Native Corporations do not qualify as "Tribal Governments" for purposes of CARES Act funding. Here, Gorsuch did not rule against a Tribe, because, in his view, ANCs are not actually tribes. Indeed, the Secretary of the Interior does not list the ANCs as federally recognized tribes.
5. Denezpi v. United States (2022) - Justice Gorsuch wrote a dissent, joined by Justices Sotomayor and Kagan, finding that the Double Jeopardy Clause prohibits second prosecution for violating Code of Indian tribe.
6. Ysleta Del Sur Pueblo v. Texas (2022) - Justice Gorsuch wrote majority opinion finding that federal law only bans on tribal lands those gaming activities also banned in Texas. This was a victory for Tribal gaming. (Chief Justice Roberts, and Justices Thomas, Alito, and Kavanaugh were in dissent).
7. Oklahoma v. Castro-Huerta (2022) - Justice Gorsuch wrote a dissent, joined by Justices Breyer, Sotomayor, and Kagan, finding that the states do not have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.
8. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin (2023) - Justice Gorsuch wrote a solo dissent, finding that the Bankruptcy Code did not abrogate tribal sovereign immunity.
9. Haaland v. Brackeen (2023) - Justice Gorsuch wrote a concurrence, joined by Justices Sotomayor and Jackson, to provide "an understanding of the long line of policies that drove Congress to adopt ICWA."

How do we explain this 9-0 record? The usual line is that Gorsuch is a westerner. Adam Liptak explores this point in the Times:

In a pair of opinions on Thursday, Justice Neil M. Gorsuch again demonstrated that he is the fiercest proponent of Native American rights on the Supreme Court. That does not surprise people who knew him when he served on the federal appeals court in Denver. "He's from Colorado," said John E. Echohawk, executive director of the Native American Rights Fund. "He's the only Westerner on the court. He knows these issues. He knows these tribes."

I agree with Mike Dorf that this explanation is not entirely persuasive:

At this point, Justice Gorsuch's sympathy for American Indians and Indian tribes cannot be doubted. Its exact source is a bit of a mystery. I have seen it said that, as with Douglas, it comes from the fact that Gorsuch is a westerner. But that's hardly a satisfactory explanation. So were Bryon White, William Rehnquist, and Sandra Day O'Connor, none of whom was a special champion of Indian rights.

Perhaps it's pointless to speculate. People attribute Justice Kennedy's sympathy for gay rights to his personal friendships, but that only raises the question of why he was open to such friendships. Why any of us develops the particular views we have is a complex and perhaps unanswerable question.

Justice Gorsuch exclusively writes opinions favoring Indian tribes and members. And he is consistently on the other side of Justices Thomas and Alito. Moreover, Gorsuch writes with such a passion for the plights of native people. For whatever reason, Justice Gorsuch is committed to the cause. To paraphrase his dissent in Lac du Flambeau, in a case concerning Indian rights, when Gorsuch takes the pen, it is as "good as a possession arrow favoring" the Indian tribe or member.

Comments

[Mark Regan]

Another way to look at it would be that since Justice Gorsuch has been on the Court, Justices Thomas and Alito have always ruled against tribal rights. Exclusively.

Shouldn't that be cause for concern?

[Frank Drackman]

Maybe he's 1/1,024th Injun, like Poke-a-Hontas, he does have those high cheekbones.

[Moderation4ever]

Is Gorsuch wrong for his views? Instead of writing why Gorsuch sides with tribes so much, why not ask why Thomas and Alito side with tribes so little? With such a long and awful history of tribal children being taken from their families why would Thomas and Alito think the practice should be brought back with their dissent in Haaland vs Brackeen.

[F.D. Wolf]

Whenever someone is described as "an expert in American Indian law", as Gorsuch was before his confirmation, you can be certain he is an individual who romanticizes American Indians. I mean, no one takes an American Indian Law course in school to learn how to sue Indians. He's probably a big James Fenimore Cooper fan.

[Sarcastr0]

Fuck yeah telepathy.

[F.D. Wolf]

What you call "telepathy" is known as "reasoning". Adults are often called upon to draw conclusions or inferences based on observations without having every conceivably relevant fact available. They use past observations and experiences to inform those conclusions. If you are unable to reach a conclusion without metaphysical certitude, well, at least you'll never have to sit on a jury. I think Shakespeare wrote a play about a guy like that.

[Sarcastr0]

Not reasoning, supposition.

One can imagine plenty of reasons to take Indian Law other than romanticizing American Indians.

But you, with zero evidence or observation than that a course was taken, have a whole narrative written out.

[Currentsitguy]

Perhaps he drove through the Pine Ridge Reservation. It's damn hard to go there and not feel for those people.

[Dr. Ed 2]

Actually, *someone* is doing a fairly good job defending suits by Indians, or these cases would never make it to SCOTUS. I can see specializing in defense against suits filed by Indians, there's enough money involved...

[Doug Heffernan]

One's collection of life experiences forms a brute fact that no amount of theory or less fundamental ideology can ever subvert.

To live it is to know it, in an unshakeable way. Expecting someone to deny their lived experience and defer to the contrary is always folly. All of this is distinct from congruence with any objective notion of truth or accuracy.

This is also why it is dangerous to have a bunch of theologians on the court.

[arch1]

“This is also why it is dangerous to have a bunch of theologians on the court.”

I think you’re going a bit easy on the theologians here. Everyone has lived experiences and I agree that these can result in strong biases. But religions can take this risk to the next level - especially those which exalt for their very survival the notion of “faith” (i. e. superstition, i.e. the holding of core beliefs for no good reason), a direct frontal assault on rationality itself to which many are subject from the earliest possible age.

[hobie]

Yet another minority gets a little justice from the court. You bitched about the blacks last week. The gays before that. Now the Indians. You're a racist, Blackman.

[Rev. Arthur L. Kirkland]

The Conspirators and their fans dislike mention of this blog’s diffuse bigotry.

[F.D. Wolf]

I'm not sure exactly who is getting "justice" here. Certainly not the Indian orphans who will never get to be adopted under the theory that it is better they should have no parents than non-Indian ones. (In fact, that is the overtly "racist" position, whereas the other side is expressly saying race shouldn't be a factor).

Regardless of the dubious merits of the Act, it explicitly discriminates on the basis of race. (But Congress had good intentions, so that makes it OK apparently.)

[hoppy025]

And these same people would never support a law prohibiting non-whites from adopting white children.

[Kleppe]

Gays aren't a race.

[Bwaaah]

That was only true as of yesterday, and even then, it depended on who you asked. Words don't have to have particular meanings to be useful, ya know? (Work with me here, and you'll find yourself able to work with a vast number of people and their unhinged beliefs. Don't question me on this; I don't know what "work with" means.)

Could it be that much current political discord does not reflect genuine differences in opinions, but more, the bifurcation [and thereby disintegration] of shared language into purposely different meanings? Get people to be on your side and to disagree with each other by surreptitiously changing the definitions of their words. ("male", "female", "anti-racist", "racist", "harmful", for example) Maybe this has always been an invaluable tool for many of the manipulative people who drive political movements (a.k.a. "shysters")?

[Larvell Blanks]

Unless you’re an Indian who wants your child adopted by a non-Indian, or you’re the child.

[circleglider]

Notable in Haaland v. Brackeen today that neither Barrett’s majority opinion nor Gorsuch’s concurrence ever mentioned or referenced Thomas’s dissent. And Alioto’s dissent was only barely mentioned.

Not exactly intellectual rigor.

But when it comes to Indian affairs, it’s become painfully obvious that Gorsuch’s only concern is results. Could the rest of the Court be adopting his zeal? Or is he just really persuasive at conference? Or maybe the rest of the Justices just don’t care very much about Indian law.

Barrett’s opinion was also notably distressing, repeatedly faulting the Plaintiffs for not doing a better job of the Court’s work for them. Maybe this is just indicative of her still-developing style?

[Dan Schiavetta]

Yes, Gorsuch is a Westerner, but the people who are in court opposing Native American rights are Westerners. That’s where the conflict arose, that ended up in litigation.

[Dr. Ed 2]

I agree -- it's intellectually lazy to say that Colorado represents the entire "West." It's like saying that Georgia and Massachusetts are identical because they are both on the East Coast....

And Alaska is a LONG way from Colorado...

[hoppy025]

How are "Native American" rights implicated here? Please explain your work.

[Brett Bellmore]

It sounds to me as though you could arrive at the same numbers if Gorsuch simply takes the sovereignty of Indian tribes seriously. Which is more of an ideological thing, than sympathy for indians.

[apedad]

Isn't it less than an ideological thing and more of a constitutional thing?

"A key principle of American Indian law is the right to tribal sovereignty, or the power of self-government. The United States Constitution at art. I, sec. 8, cl. 3 (sometimes referred to as the Indian Commerce Clause) recognizes this inherent authority. That clause provides Congress with the power 'To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]' Federal courts have interpreted this clause to mean that while tribes have the right to self-government, that sovereignty is subject to an overriding federal authority. Cohen's Handbook of Federal Indian Law describes the unique relationship between the federal government and sovereign tribes:

Perhaps the most basic principle of all Indian law supported by a host of decisions . . . is the principle that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. What is not expressly limited [by Congress] remains within the domain of tribal sovereignty."

https://guides.loc.gov/american-indian-law/Federal-Law

[Brett Bellmore]

Ideological in the sense that there’s an ideological divide on whether to actually follow the Constitution, or just make up stuff you think is better.

“That clause provides Congress with the power ‘To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]’ Federal courts have interpreted this clause to mean that while tribes have the right to self-government, that sovereignty is subject to an overriding federal authority.”

And there’s an example of that. The commerce clause actually makes no distinction between the Indian tribes and foreign governments; They ARE foreign governments, that just happen to govern territory that was neighbored or surrounded by US territory.

It makes no more sense to interpret this as compromising the tribes’ sovereignty, than to interpret it as compromising the sovereignty of other countries, which are decidedly NOT “subject to an overriding federal authority”. Even the state governments' sovereignty is only compromised on the basis of explicit constitutional clauses they'd signed onto in ratifying the Constitution! Or else they'd be as independent as other countries.

We didn’t repeatedly violate treaties and jerk the indians around because we had constitutional permission to. We did it because we had the power to, and the courts weren’t inclined to say “No.”. I'm glad the Court has finally had enough of treating our treaties with the indians as legally meaningless.

[hoppy025]

I'm not sure I follow. The law in question wasn't passed by an Indian tribe prohibiting non-Indian adoption of tribal kids. It was passed by Congress.

[bevis the lumberjack]

But that’s a garbage interpretation. “Regulate commerce WITH foreign nations, AMONG the several states, and WITH the Indian Tribes”. Note that the language obviously treats the tribes as foreign nations.

Sovereignty of the tribes is not subject to overriding federal authority. Is the sovereignty of any foreign nation (France? Bolivia?) subject to overriding federal authority? Of course not. And the language strongly implies that the tribes are to be treated as foreign nations. Gorsuch is right to treat it that way.

[ReaderY]

In the 1970s, Congress passed a law comprehensively settling Native Alaskan claims. As part of the law, it extinguished the sovereignty of all native Alaskan tribes. The Supreme Court very recently reaffirmed that that’s exactly what Congress did, Native Alaskan corporations, while “tribes” for some purposes, are not governments possessing sovereignty, merely private corporations and associations, and laws pertaining specifically to governments do not apply to them.

If “sovereignty of the tribes is not subject to overriding federal authority,” then how did Congress manage to do this?

[bevis the lumberjack]

They ignored the fucking constitution. Shocking, right? Our elite, principled leaders would never, ever do that.

You tell me what that language says if you think it’s something other than what I pointed out.

[Mark Regan]

As the Alaska Supreme Court has held in various cases, including John v. Baker, 982 P.2d 738 (Alaska 1999) (membership-based child custody jurisdiction), Congress did not extinguish the sovereignty of all Alaska Native tribes. Tribes co-exist with Native Corporations, which are not governments but sometimes are the beneficiaries of Federal grants going to tribes.

[Brett Bellmore]

That's my point, that the commerce clause doesn't actually provide any basis for treating indian tribes any different from foreign nations; They WERE foreign nations, that just happened to be surrounded by the US, or in some cases bordering on it.

I mean, we have treaties with them. You don't make treaties with parts of your own sovereign nation, you make treaties with OTHER sovereign nations!

The states have a different status, on account of actually being a party to the Constitution, and ratifying it.

The indian tribes ARE subject to overriding federal authority, but not as a matter of constitutional text, as a matter of raw power and judicial indifference. Gorsuch doesn't suffer from as much of that indifference as some of the Justices, and good for him!

[bevis the lumberjack]

“I think we should live by the guidance of the constitution, at least until I don’t. At some point later I will again”.

[blue-heron]

"People attribute Justice Kennedy's sympathy for gay rights to his personal friendships, but that only raises the question of why he was open to such friendships."

Open to such friendships? This sort of smarmy vitriol is why I hold you and your ilk in utter disregard. I can not believe that you are entrusted to educate anyone.