Justice Neil Gorsuch Is a Committed Defender of Tribal Rights

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.”

Justice Gorsuch voted with the majority on Thursday in a 7-to-2 ruling rejecting constitutional challenges to the Indian Child Welfare Act, a 1978 law that sought to keep Native American children with their tribes. He joined Justice Amy Coney Barrett’s 34-page majority opinion and added 38 pages of his own, in a concurring opinion steeped in history and marked by blazing rhetoric.

“Often, Native American tribes have come to this court seeking justice only to leave with bowed heads and empty hands,” he wrote. “But that is not because this court has no justice to offer them. Our Constitution reserves for the tribes a place — an enduring place — in the structure of American life.”

Two of the court’s liberal members, Justices Sonia Sotomayor and Ketanji Brown Jackson, joined most of Justice Gorsuch’s concurring opinion.

In a second case, concerning the applicability of the bankruptcy laws to Indian tribes, Justice Gorsuch was the lone dissenter. Here, too, he took the long view. “The Constitution’s text — and two centuries of history and precedent — establish that tribes enjoy a unique status in our law,” he wrote.

Native American lawyers and scholars have taken note of Justice Gorsuch’s particular dedication to tribal rights.

“He understands what’s at stake and takes tribal sovereignty seriously in a way very few justices in the history of the court have,” said Elizabeth Hidalgo Reese, a law professor at Stanford. “He seems to be principled in certain ways about things he cares about.”

Justice Gorsuch, the first of President Donald J. Trump’s three Supreme Court nominees, is known for his commitment to doctrines like originalism and textualism, which have generally pushed the court to the right.

He was in the majority, for instance, in last term’s cases eliminating the right to abortion, expanding gun rights, restricting efforts to address climate change and enlarging the role of religion in public life.

In other cases, though, he has called on those same doctrines to forge his own path. His most notable majority opinions protected gay and transgender workers and the sovereignty of Native American tribes.

Justice Gorsuch’s recent opinions, and much of the rest of his jurisprudence, are marked by a distinctive view of the law, one that sometimes merges sympathy for vulnerable litigants with an adherence to formal legal doctrines, whatever the consequences.

And he is perfectly willing to go it alone.

“He just doesn’t care at all about what anyone else — his colleagues, the press, politicians — thinks,” said Daniel Epps, a law professor at Washington University in St. Louis.

In 2020, Justice Gorsuch wrote the majority opinion in a 5-to-4 decision declaring that much of eastern Oklahoma falls within Indian reservations.

It began with a memorable passage: “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.”

He was joined by what was then the court’s four-member liberal wing, including Justice Ruth Bader Ginsburg, who died a few months later.

After President Donald J. Trump appointed Justice Amy Coney Barrett to succeed Justice Ginsburg, the court reversed course, narrowing the 2020 decision last year in another 5-to-4 ruling. Justice Gorsuch wrote an angry dissent.

“Where this court once stood firm,” he wrote, “today it wilts.”

In November, when the Supreme Court heard arguments in the Indian Child Welfare Act case, Justice Gorsuch questioned lawyers for the challengers vigorously, with flashes of anger and frustration.

“That’s simply not true,” he said to one. To another, who had argued that there were sound reasons for doubting the wisdom of the law, he said, “the policy arguments might be better addressed across the street,” referring to Congress.

His concurring opinion on Thursday recounted in ugly detail the cruel mistreatment of Native American children over the centuries.

“In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike,” he wrote. “It has also presented an existential threat to the continued vitality of tribes — something many federal and state officials over the years saw as a feature, not as a flaw.”

He concluded his opinion on a hopeful note. The law upheld by the court, he wrote, vindicated at least three promises: “the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”

“All of that,” he wrote, “is in keeping with the Constitution’s original design.”

Justice Gorsuch joined the Supreme Court in 2017, replacing Justice Antonin Scalia, who had died more than a year before. In the meantime, Senate Republicans blockaded President Barack Obama’s nomination of Merrick B. Garland, then the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit and now the attorney general.

Justice Gorsuch had served on the 10th Circuit, in Denver, for more than a decade. He heard the news of Justice Scalia’s death midway down a ski slope.

“I immediately lost what breath I had left,” he said in a speech two months later. “And I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears.”

On the Supreme Court, Justice Gorsuch has embraced his predecessor’s interpretive methodologies of originalism, which looks to the meaning of the Constitution when it was adopted, and textualism, which focuses on the words of federal statutes.

But there are more than a few areas in which the two men, using the same approaches, reached contrary conclusions. Justice Scalia wrote the majority opinion in 1990 in Employment Division v. Smith, which said that neutral and generally applicable laws could not be challenged on the ground that they violated the First Amendment’s protection of the free exercise of religion.

Justice Gorsuch wants to overrule that decision. In 2021, he joined a concurring opinion from Justice Samuel A. Alito Jr. that said so in the plainest terms: “Smith was wrongly decided. As long as it remains on the books, it threatens a fundamental freedom. And while precedent should not lightly be cast aside, the court’s error in Smith should now be corrected.”

Justice Scalia was not particularly sympathetic to Native American rights. By one reckoning, he voted in favor of tribal interests 16 percent of the time over his 30 years on the Supreme Court. According to David E. Wilkins, a professor at the University of Richmond, Justice Scalia was “one of the most rabidly anti-Native justices” ever to serve on the court.

The Smith decision involved Native Americans. Writing for the majority, Justice Scalia said that the First Amendment’s guarantee of the free exercise of religion did not protect two members of the Native American Church fired from their jobs as drug counselors for taking peyote during a religious ceremony.

By contrast, while on the appeals court, Justice Gorsuch in 2014 ruled that a Native American prisoner could pursue a lawsuit for access to a sweat lodge, which Justice Gorsuch described as “a house of prayer and meditation,” under a federal law enacted after Smith.

“Trying to separate the sacred from the secular can be a tricky business — perhaps especially for a civil court whose warrant does not extend to matters divine,” he wrote.

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