The Pathfinder: How A Trump-Appointee Became The Strongest Defender of Tribal Rights in Supreme Court History
Native American rights groups seem to have found some representation on the bench in an originalist Trump-appointee named Neil Gorsuch.
The Supreme Court’s relationship with Native American rights is one of the
most storied parts of the institution’s history. From Johnson v.
McIntosh in 1823, which forbade the sale of Tribal
land to private individuals, effectively establishing the “doctrine of
discovery;” to Cherokee Nation v. Georgia in 1831 which defined the
status afforded to Native American tribes in the United States, there is no
dearth of landmark cases relating to our indigenous counterparts.
Some former and current Justices can be noted for outwardly giving their support to the legal rights of Native Americans; notably, Sandra Day O’Connor supported the Indian Child Welfare Act and Thurgood Marshall often protected tribes from state interference. However, no one, other than the Trump-appointed Neil Gorsuch, has made it a hallmark of their judgeship to not only defend, but promote and assert the rights of tribes, when they come before the Court.
How did a Trump-appointee, who was considered “too conservative for the position” by some, become such a stalwart defender of a traditionally liberal cause? How did Justice Gorsuch metaphorically “reach across the aisle” and develop a partnership with staunch liberal Justice Sonya Sotomayor? The answers reveal a lot about how we view political alignments in the Judiciary, the interpretation of government policies by minority groups, and the values we all share as Americans.
Tribal Rights and Gorsuch
To fully understand how Justice Gorsuch defends Tribal rights in Washington, deciphering and analyzing his opinions on certain key rulings can certainly help us get there. Of the many cases to choose from, Justice Gorsuch’s concurring opinion in Washington State Department of Licensing v. Cougar Den, Inc. in 2019, as well the various cases related to McGirt v. Oklahoma, can best shine light on his reasoning and motivations.
In 1885, the Yakama Nation signed the Yakama Nation Treaty at the Walla Walla Council in present-day Washington State. This treaty ceded around 10 million acres of traditional Yakama land to the United States federal government in return for exclusive rights to members of the tribe; one of the rights included was the right to free travel on all public highways. In the early 2010s, the Yakama Nation founded a company,Cougar Den, Inc., to import gasoline to sell to tribal members on their reservation. The State of Washington has a tax on all imported fuel that enters its borders via truck, essentially forcing the Yakama Nation to pay taxes for their imported gasoline. The Nation refused, the State applied penalties on the corporation, and the back-and-forth ensued until the issue reached the Supreme Court.
The Supreme Court ruled in favor of Cougar Den in a 5-4 ruling, with former Justice Breyer stating that the inherent aspect of the Yakama Nation Treaty was that tribal members must not pay taxes on imported goods. Gorsuch’s concurring opinion goes even farther , stating the treaty was articulated to members of the tribe (in Chinook) to have had insinuations that the right to free travel would not become expunged once a member used public highways for commerce. Gorsuch goes even farther, discussing the history of the Yakama Nation and how the federal government abused the power dynamics in order to get what it wanted. He concludes his opinion with the following:
Really, this case just tells an old and familiar story. The State of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The State is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do.
Such an opinion is something we would normally see from Justice Kagan or Sotomayor. This is not the only such opinion from Gorsuch on Tribal matters; look no further than his dissenting opinion in Oklahoma v. Castro-Huerta.
Oklahoma v. Castro-Huerta is a case that is much too complex to fully develop in this piece. One cannot truly understand the scope of this case without also understanding McGirt v. Oklahoma and Sharp v. Murphy. In a quick summary, these cases relate to Tribes in Eastern Oklahoma and how they policed and prosecuted crimes committed on reservation territory. While there are numerous tidbits of support for Tribal rights in McGirt, Gorsuch’s dissenting opinion shows not only his consistent ability to break from the other conservative Justices, but also his lack of faith in the Court’s ability to uphold previous treaties and the rights of Native Americans. He writes:
Where this Court once stood firm, today it wilts. 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. Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands. At various points in its history, Oklahoma has chafed at this limitation. Now, the State seeks to claim for itself the power to try crimes by non-Indians against tribal members within the Cherokee Reservation. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s. Respectfully, I dissent.
Don’t be fooled, Justice Gorsuch’s breaking away from other judicial conservatives on this issue does not show that he is some hidden liberal. Gorsuch is openly conservative on LGBT rights, the Second Amendment, and abortion. With his position on Tribal Rights established, we should now examine how he reached it.
The Nature of His Stance
Justice Gorsuch’s legal philosophy is relatively plain. He is an originalist, in the same breath as Scalia and Thomas. He is a conservative, in the same style as Kavanaugh and Barrett. But he is also a “textualist,” and while other former and current members of the Court proclaim themselves to be such, it truly feels like Gorsuch is genuinely one.
Textualism is the belief in interpreting laws based squarely on the meaning of the original text when it was passed. Considerations regarding hidden intentions, secondary sources, and anything else of the sort are considered ultimately “unimportant” to textualists. During his Senate confirmation hearings, Gorsuch was asked about his stance on textualism, in which he responded by saying:
Textualism offers a known and knowable methodology for judges to determine impartially what the law is.
One common argument that can be found in most, if not all, of Gorsuch’s work regarding Tribal rights is the inability of the United States to not upholding previously signed treaties. Repeatedly, the Supreme Court and lower courts were tasked with reading the fine print on documents and treaties signed centuries ago. They determine if a treaty that was signed with a Tribe is being violated, and if so, what implications that has for other interactions between state and tribe.
With regard to Justice Gorsuch’s textualist approach, one can clearly see his adherence to the inherent tenets of the values of this legal philosophy. In Washington State Department of Licensing v. Cougar Den, Inc, the Yakama Nation Treaty of 1855 was a central point for Gorsuch in why he sided with the tribal corporation. In Herrera v. Wyoming, Justice Gorsuch upheld the Treaty of Fort Laramie as a reason to side with the Crow Nation and their right to hunt on unoccupied lands. Finally, in Ysleta del Sur Pueblo v. Texas, Gorsuch brings up both the precedent found in California v. Cabazon Band of Mission Indians, as well as the Restoration Act.
Do these examples mean that Justice Gorsuch is “more” of a textualist than other Justices who also proclaim themselves as such? I do not know. What this does show is that the Justices that sit on the Supreme Court have the ability to go across party lines and surprise even the most terminal observers. Justices appointed by Republicans do not inherently side against Native rights, as the national Republican party does. Legal philosophical preferences do not always match up with political philosophical preferences, and acting like both must match leads to some very surprising results.
State of Our Nation
Justice Neil Gorsuch is a conservative. His voting record is one that shows a commitment to the Republican Party and right-wing movements. His judicial philosophy stems from the same conservative values that gripped the minds of Scalia and Thomas. But his commitment to unabashed textualism, found in his opinions ranging from freedom of speech to Tribal rights, shows a side of this movement that might still be true. One that recognizes the previous attempts at reconciliation by our federal government with the Native populations that we subjugated and attempts, at least in part, to right some of these wrongs.
The modern MAGA version of the Republican Party continuously proves themselves to be a party that is uncommitted to the Constitution, whether it be through attempts to undo birthright citizenship or constantly censure and punish speech. One thing we can hope is that the tenets of originalism and textualism remain part of the conservative mind, not because they are values to uphold within their own right, but because they provide a much needed counterbalance to the judicial pragmatism found in more liberal wings of our judicial community. Justice Gorsuch, even with all of my disagreements regarding his political leanings, shows us that this can be true.