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:
Upper Skagit Indian Tribe v. Lundgren (2018)—Justice Gorsuch wrote majority opinion finding in favor of tribal sovereign immunity. (Justices Thomas and Alito dissented).
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).
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).
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.
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.
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).
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.
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.
Halland 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.
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