Justice Gorsuch and what is owed to American Indians

Much ink has been spilled on Justice Neil Gorsuch’s ardent defense of the rights of American Indians. As legal scholar Ilya Somin noted in 2023, until then “Justice Gorsuch ha[d] never voted against Native American interests in a Supreme Court case.” Many commentators – those of a liberal bent in particular – have reacted with puzzlement to this aspect of Gorsuch’s jurisprudence. This confusion was perhaps put best (fairly or not) by Mark Joseph Stern, who asked “[h]ow did an archconservative justice on an archconservative bench become the best friend Native Americans have ever had at the Supreme Court?”

In reply, several explanations have typically been offered.

First, some have posited that, because Gorsuch hails from the Mountain West and spent 11 years on the U.S. Court of Appeals for the 10th Circuit adjudicating disputes involving American Indians, he might be especially sympathetic to the impact of the court’s opinions on them.

Others have pointed to Gorsuch’s fidelity to the Constitution itself. According to this view, because the “Constitution …command[s] a certain measure of sovereignty and respect for tribes and their members,” Gorsuch is simply acting in accordance with these tenets.  

Finally, although not directly related to Gorsuch’s voting in American Indian cases, Sarah Isgur and David French have suggested that an anti-bullying philosophy underlies Gorsuch’s entire jurisprudence, which is reflected, for example, in his skepticism towards overzealous prosecutors and meddlesome government bureaucrats. Along these lines, there is no greater bully than the U.S. government when it has come to the rights of American Indians.

I think all three explanations have some truth to them. But I find none entirely satisfying.

First, it is certainly plausible that Gorsuch’s Colorado roots, and his experiences concerning American Indians, may play some role in this aspect of his jurisprudence. But there are plenty of judges from the West who do not share Gorsuch’s stance regarding American Indians. (Nor, as Gregory Ablavsky has pointed out, have other justices from that area been particularly favorable to American Indian rights.)

Second, it is undisputable that Gorsuch is a fervent proponent of originalism. And there is no doubt that the justice has grounded some of his support for American Indian sovereignty in the Constitution. But Gorsuch’s originalist understanding of the Constitution, by itself, is not sufficient to explain his stance on such persons’ rights. Justice Clarence Thomas is also an originalist – and Thomas, like former Justice Antonin Scalia before him, has shown no such sympathy for American Indians. Furthermore, the justices most likely to join Gorsuch in supporting their interests – Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson – are not originalists.

Finally, while an anti-bullying ethos certainly helps explain much of Gorsuch’s jurisprudence, it doesn’t explain the justice’s traditionally conservative position when it comes to other minority groups.

So what drives this aspect of Gorsuch’s jurisprudence? Or must we, as one commentator has declared, wait until Gorsuch writes a memoir to “know the source of his remarkable empathy for tribal sovereignty”?

I don’t believe so – and this is because I think the answer is strikingly simple. In the most prominent Supreme Court cases in which Gorsuch has voted for American Indian rights, he has consistently emphasized the same thing: Promises were made (including in the Constitution itself), these promises were broken, and the Supreme Court has an obligation to rectify this – especially since Congress has failed to do so. Or, as Marcia Zug has succinctly explained, Gorsuch’s “opinions are about a recognition of a promise of bargains made between the United States and Native nations, and he’s holding the United States to their promises.” (I think this is, in turn, a reflection of Gorsuch’s libertarian leanings, although I will leave that larger issue for another time.)

But let’s turn to the cases themselves.

In McGirt v. Oklahoma, the court was asked to decide whether property in northeastern Oklahoma historically designated for the Creek Nation remained a reservation under a federal statute giving the U.S. government sole jurisdiction over certain offenses committed by “[a]ny Indian” in “Indian country.” In a 5-4 opinion, written by Gorsuch, the court answered in the affirmative – effectively recognizing much of Oklahoma as Creek Nation territory.

From the get-go, Gorsuch made clear his justification for issuing such a sweeping ruling: “On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.” But, as Gorsuch pointed out, this promise had been broken: “While there can be no question that Congress established a reservation for the Creek Nation, it’s equally clear that Congress has since broken more than a few of its promises to the Tribe. Not least, the land described in the parties’ treaties, once undivided and held by the Tribe, is now fractured into pieces.”

Throughout McGirt, Gorsuch again and again returns to promises made and promises broken. Indeed, by my count, he cites the concept of such promises over 30 times in his 42-page opinion. The bottom line, according to Gorsuch, is this: “[t]he federal government promised the Creek a reservation in perpetuity,” this commitment turned out to be hollow, and the government is now once again trying to renege on its pledge. “We reject that thinking. If Congress wishes to withdraw its promises, it must say so.”

Gorsuch had equally strong words two years later, in the case of Oklahoma v. Castro-Huerta. There, a 5-4 court ruled that “Oklahoma – and all other states – possess[] concurrent jurisdiction with the federal government over crimes committed by non-Indians against Indians in Indian country.”

In an impassioned dissent, Gorsuch returned to the existence of a broken promise: “After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities.” In this vein, “[o]nly the Tribe or the federal government could punish crimes by or against tribal members on tribal lands.” But, according to Gorsuch, the state of Oklahoma “chafed at this limitation,” seeking “to try crimes by non-Indians against tribal members within the Cherokee Reservation.” He concluded that, by acceding to the state’s wishes – and allowing Oklahoma to have jurisdiction over such offenses – the majority now failed to honor Congress’s promise. In Gorsuch’s words: “One can only hope the political branches and future courts will do their duty to honor this Nation’s promises even as we have failed today to do our own.”

The court decided the case of Arizona v. Navajo Nation the next term. In Navajo Nation, the question was whether the government was obligated by treaty to “take affirmative steps to secure water for the Navajos,” such as by assessing the Navajo Tribe’s water needs and preventing any relevant water from being misappropriated. In a 5-4 decision, the court ruled it was not.

Gorsuch – once again in dissent – invoked the theme of a promise made and a promise violated. He wrote that “[e]veryone agrees the Navajo received enforceable water rights by treaty.” In his view, part of this promise was “to identify the water rights [the U.S. government] holds for them,” and if any of these water rights had been misappropriated, for the government to “formulate a plan to stop doing so prospectively.” By ruling otherwise, Gorsuch argued, the court once again failed to require Congress to honor its commitments to the Navajo Nation, and its members were thus left to use any remaining legal means to “fight for themselves to secure their homeland and all that must necessarily come with it.”  

The court faced a radically different issue in Haaland v. Brackeen, which was decided in the same term as Navajo Nation. In a 7-2 vote, the majority rejected a challenge to the constitutionality of the Indian Child Welfare Act, a 1978 federal law passed to  keep American Indian children with American Indian parents.  

Gorsuch concurred, adamantly defending the constitutionality of the ICWA. In doing so, he invoked the “Indian-law bargain struck in our Constitution. Under the terms of that bargain, Indian Tribes remain independent sovereigns with the exclusive power to manage their internal matters” – and perhaps most profoundly with respect to their children.

In the same month, the court also decided Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, in which it held that American Indian tribes were not immune from the automatic stay of the Bankruptcy Code.

Gorsuch alone dissented. He contended that “it is an ‘enduring principle of Indian law’ that we ‘will not lightly assume that Congress in fact intends to undermine Indian’ sovereignty absent pellucid evidence to the contrary.” Because the bankruptcy provision at issue in the case made no specific mention of the American Indian tribes, Gorsuch believed that it did not apply to them. In other words, they should not be forced to enter into an agreement in which they had no say. 

Equally telling is one of the rare cases in which Gorsuch has taken an apparent stance against certain American Indian interests. In 2024, the Turtle Mountain Band of Chippewa Indians, the Spirit Lake Tribe, and three American Indian voters brought suit in federal court against North Dakota’s secretary of state. They claimed that a state legislative map adopted in 2021 diluted their voting power in violation of Section 2 of the Voting Rights Act, which prohibits racial discrimination in voting. 

The U.S. Court of Appeals of the 8th Circuit decided against them, holding that private plaintiffs cannot rely on federal civil rights laws to challenge discrimination under Section 2 of the VRA. The challengers subsequently sought a stay of the 8th Circuit’s order on the court’s emergency docket, which the justices granted on July 24. Gorsuch, joined by Thomas and Justice Samuel Alito, would have denied the plaintiffs’ request, thereby allowing the 8th Circuit’s decision to go into effect immediately.  

As the Chippewa case makes clear – and contrary to what some court observers have proclaimed – Gorsuch will not reflexively take the side of American Indians. The relevant difference between that case and those other cases cited above is obvious, however: the former does not involve any promises – whether through treaty or embedded in the Constitution – but instead concerns a question of statutory interpretation (and its possible interplay with the equal protection clause).

Of course, none of this is to say whether Gorsuch’s opinions concerning American Indians ultimately hold merit, or whether his adherence to the power of a promise extends to other areas of his jurisprudence. But this much is plain: at least when it comes to American Indian interests, Gorsuch sees the contract as key; promises made must no longer be broken. Far less clear is whether Gorsuch can get a majority of his fellow justices to agree.