Judge Gorsuch rates applause for decisions in Indian Country

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By Sherry Robinson

Indian Country, surprisingly, supports the nomination of Neil Gorsuch to the U. S. Supreme Court.
The Native American Rights Fund and the National Congress of American Indians recently endorsed the nominee. NARF, in case you haven’t heard of it, has been at the forefront of Indian law for nearly a half century.
“Judge Gorsuch has significantly more experience with Indian law cases than any other recent Supreme Court nominee,” NARF informed tribal leaders recently.
That high praise and a number of tribal endorsements (including the Navajo Nation), have transformed Gorsuch into something of a hero among Native American rights advocates, but it may be premature.
During his years on the 10th Circuit Court of Appeals Gorsuch has participated in 39 Indian cases, of which 28 involved significant questions of Indian law.
Out of those 28 cases, tribal interests won 16, or 57 percent, NARF said.
The late Justice Antonin Scalia routinely opposed tribal interests, and the rest of the Supremes haven’t been receptive to tribal arguments, so Gorsuch compares favorably.
Most important to tribes is the concept of tribal sovereignty.
Tribal sovereignty is one of those concepts that freshman legislators and lawyers new to the Southwest trip over once.
After being hit upside the head, they learn that federal courts view tribes as sovereigns with certain rights that include government-to-government relations.
Gorsuch, a Coloradoan, is clear on tribal sovereignty and, in fact, ruled with tribes on five of six such cases, NARF said. That’s extraordinary, said Thomas W. Fredericks, an attorney for the Mandan, Hidatsa and Arikara Nation.
He wrote to the Senate Judiciary Committee that Gorsuch has experience in “living in and working in a circuit which has Indian Country and strong tribal governments.” New Mexico is in the 10th District.
Tribes were cheered by Gorsuch’s opinion in 2015 that favored the Utes in a decades-long legal battle with the town of Myton, Utah. Gorsuch and his fellow jurists bashed the state of Utah and three counties for refusing to accept previous rulings and instead trying to relitigate them.
Gorsuch wrote that state court prosecutions of tribal members for offenses committed on tribal lands “strongly suggest” county officials were trying to undo tribal boundaries settled in the 1990s by the high court, the Deseret News reported. “Indeed, the harm to tribal sovereignty in this case is perhaps as serious as any to come our way in a long time,” Gorsuch wrote.
The court threatened sanctions if Uintah County didn’t get the message and even reassigned the case to a different district court judge after expressing its dissatisfaction with one judge’s actions since 1978.
In a 2014 case, Gorsuch ruled that Wyoming prison officials couldn’t deny Andrew Yellowbear, a Northern Arapahoe, access to a sweat lodge. Tribes have taken this ruling as support of Indian rights.
Experts note that Gorsuch hasn’t had to rule on issues of tribal civil jurisdiction over non-Indians or the types of novel issues that end up before the Supreme Court. So the jury is out, you might say.
Sens. Tom Udall and Martin Heinrich are planning to vote against his confirmation.
When I emailed Udall, ranking Democrat on the Senate Indian Affairs Committee, to learn if it makes any difference that Indian Country is supporting the nomination, he responded: “Absolutely it matters, and I hope that Judge Gorsuch will continue to be a judge who understands and respects the U.S. government’s trust responsibilities with regard to Indian Country.
But that doesn’t outweigh the fact that Judge Gorsuch failed to convince me that he could be the kind of independent jurist we need at this time” when the president’s actions, campaign and businesses may be matters before the Supreme Court.
“It’s more important now than ever before that we have neutral clear-minded justices sitting on the bench.”