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How did an archconservative justice on an archconservative bench become the best friend Native Americans have ever had at the Supreme Court? That is the question court observers are once again asking ourselves in light of Justice Neil Gorsuch’s role in Thursday’s hugely consequential decision protecting Native rights. Oddly, the answer may lie in the very judicial philosophy that pushes him so far to the right in so many other cases that do notinvolve the rights of a group he sees himself as a benefactor for.
Gorsuch didn’t write the 7–2 majority opinion upholding the Indian Child Welfare Act, but he penned a characteristic concurrence infused with profound empathy for Native people. It’s just the latest in a long line of cases in which Gorsuch has gone to bat for Indigenous communities, bemoaning their centuries of persecution by the U.S. government. Again, the question arises: Why is he so consistently in line with progressive values on this one issue?
The standard explanation is that Gorsuch is a Westerner who spent his childhood in Colorado and his lower-court career adjudicating many “Indian law” cases on the U.S. Court of Appeals for the 10th Circuit. And that’s surely a part of it: Most justices have little contact with Native Americans, which seems to translate into a myopic view of issues that affect them. As John E. Echohawk, executive director of the Native American Rights Fund, told the New York Times’ Adam Liptak: “He’s the only Westerner on the court. He knows these issues. He knows these tribes.”
Advertisement Advertisement Advertisement AdvertisementThere is, however, another element of Gorsuch’s Indian law decisions that isn’t captured by his personal biography. A persistent theme of Gorsuch’s jurisprudence is a conviction that the nation’s ills can almost always be attributed to some deviation from the Constitution’s original design and that restoring constitutional governance as envisioned by the Framers will right many wrongs of American history. Nowhere is that belief more consistent—and true—than in the Indian law cases. Gorsuch is right: The Constitution does command a certain measure of sovereignty and respect for tribes and their members; America’s brutal oppression of Native Americans represented a sharp break from the Framers’ intent.
When drafting constitutional provisions governing Native affairs, the Framers were eager not to repeat the mistakes of the Articles of Confederation, which had attempted to divide authority over tribal relations between the states and the central government, ending in disaster. Under the Articles of Confederation, some states refused to respect treaties between tribal nations and the central government, preferring instead to claim Indian land as their own through violent conquest. To avoid this result, the new Constitution gave Congress (not the states) exceedingly broad power to regulate relations with Native people, including the authority to “make treaties” with tribes. It also implicitly recognized tribes’ sovereign right to govern their own internal affairs by treating them as separate nations. Predictably, land-hungry states—especially those in the South—disliked this new arrangement. By the 1820s, state officials were trying to exercise their jurisdiction within tribal borders, abolish tribal governments, and seize tribal lands for white settlers.
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Read MoreThe Supreme Court, led by Chief Justice John Marshall, famously rejected these encroachments in 1832’s Worcester v. Georgia, establishing tribes’ right to self-governance and repudiating state claims to jurisdiction over “Indian Country.” By that point, though, President Andrew Jackson had already commenced “Indian removal,” marshaling the power of the federal government to forcibly relocate Native people westward—the infamous Trail of Tears. Jackson’s administration spurned the principle of tribal sovereignty, setting a precedent for the odious treatment of Native people by the U.S. government that lasted well into the 20thcentury. In that period, both the states and the federal government felt empowered to seize Native land, break up Native families, and suppress Native self-governance.
Advertisement AdvertisementGorsuch wants to change all that. And he has held that ambition from the start of his judicial career, back to his time on the 10thCircuit, when he regularly ruled in favor of tribal rights—leading many Native leaders to endorse his elevation to the Supreme Court in 2017. He soon proved that their trust was not misplaced, casting the decisive fifth vote in two cases that forced states to honor treaty obligations to tribal nations. Then, in 2020, he wrote the 5–4 decision in McGirt v. Oklahoma, holding that more than 40 percent of modern-day Oklahoma remains “Indian country” under a series of 19th-century treaties with the Creek Nation.
Advertisement AdvertisementAll these decisions were joined by the four liberal justices. After Amy Coney Barrett replaced Ruth Bader Ginsburg, though, the court sharply limited McGirt, to Gorsuch’s profound dismay. That retreat seemed like a bad omen for Gorsuch’s campaign to restore Native rights. Yet he scored another major win on Thursday when the court issued Haaland v. Brackeen. The 7–2 ruling rejected challenges to the Indian Child Welfare Act, a federal law that limits states’ ability to remove Native children from their communities. Although Barrett wrote the majority opinion, Gorsuch took the opportunity to reiterate his belief that the Constitution, as originally understood, compels respect for Native people.
AdvertisementIt’s important to note that when reading these opinions, there can appear to be a Dr. Jekyll and Mr. Hydequality to Gorsuch’s jurisprudence. Just a few weeks ago, he described COVID restrictions as arguably “the greatest intrusions on civil liberties in the peacetime history of this country,” ignoring many of the abuses of Native people he so eloquently laid out in Thursday’s concurrence (not to mention many other historic injustices). In that latest concurrence, though, he wrote genuinely moving tributes to “the right of Indian communities to resist fading into the twilight of history.” It can be difficult to square these wild swings in outlook.
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But the two Gorsuches really are one and the same. A through line of the justice’s work is the notion that bad things happen when the country steps out of line with the Constitution, while good things happen when it steps back into compliance. He believes in the “hydraulic pressures of our constitutional system,” meaning that the suppression of one constitutional function has unintended consequences for the others. Gorsuch thinks the administrative state, for instance, grew out of rampant infringements of the separation of powers, leading an unaccountable bureaucracy to crush the liberties of everyday citizens. He thinks freedom of the press has been expanded so far beyond its original meaning that it is now subverting freedom of speech. He thinks Congress’ overbroad regulation of interstate commerce has trammeled the rights of private landowners. He stuffs his opinion with tributes to the Framers’ genius, treating the Constitution like a Swiss watch whose interlocking parts are thrown out of whack by the slightest deviation.
AdvertisementAnd so it is with Native Americans: Surveying the nation’s sordid history of mistreating its Indigenous peoples, Gorsuch concludes that if we had only stuck with the “the Constitution’s original design,” we could have avoided these horrors, “reserv[ing] for the tribes a place—an enduring place—in the structure of American life.” By betraying the Native rights enshrined in the Constitution, the government triggered an escalating series of injustices whose devastating impact lasts to this day. To Gorsuch, the only solution is to reach back, far back, and restore the promises of 1789. Honor the treaties. Respect Congress’ authority to protect Native people. Rebuff state efforts to diminish tribal sovereignty.
When Gorsuch is wrong, he’s often painfully, catastrophically wrong. But when he’s right, he’s right. And his singular commitment to Native justice is one of the most encouraging developments at the Supreme Court so far this century.
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