Justice Neil Gorsuch is Our Champion of Native Sovereignty in the Supreme Court

As members of the Native Americans for Sovereignty and Preservation (NASP), we are deeply committed to defending and preserving Native American rights and sovereignty. Today, we want to express our gratitude and respect for a figure who has consistently upheld the knowledge of tribal law within the highest court of the United States – Justice Neil Gorsuch.

Justice Gorsuch, nominated by President Donald Trump on January 31, 2017, and has served since April 10, 2017, has a track record that speaks to his profound understanding of and respect for the unique legal status and rights of Native American tribes. His rulings have demonstrated a consistent commitment to upholding tribal sovereignty and a deep respect for the treaties and agreements that have shaped the relationship between Native American tribes and the federal government.

One notable instance was Gorsuch’s decisive role in the landmark 2020 Supreme Court decision, McGirt v. Oklahoma. This case reaffirmed the reservation status of a significant portion of eastern Oklahoma, recognizing it as Native American territory. Justice Gorsuch’s majority opinion was not only a legal victory but also a moral one, as it acknowledged the validity of long-standing treaties between the U.S. government and Native American nations, thus honoring our history and rights.

In his time on the bench, Justice Gorsuch has not wavered in his commitment to tribal sovereignty and the rights of Native American people. His decisions consistently reflect an understanding that treaties are not just historical documents but living agreements that continue to bind the United States to its commitments.

Furthermore, Gorsuch’s opinions often display a deep empathy for the lived experiences of Native American people. He does not shy away from the complex and often painful history that has shaped the relationship between Native American tribes and the U.S. government. Instead, he uses this understanding to inform his rulings, ensuring that the unique context of Native American history is considered in the court’s decisions.

We at NASP believe that the presence of a justice like Neil Gorsuch on the Supreme Court is invaluable. His commitment to upholding Native American rights and sovereignty provides a crucial voice within the land’s highest court. We are grateful for his continued service and dedication to justice for all, including Native American nations.

We hope that Justice Gorsuch’s example will inspire future justices and legal thinkers to approach Native American rights with the same level of respect and commitment. In a nation that values justice and equality, respect for Native American rights and sovereignty should always be upheld.

Here are some court decisions that Neil Gorsuch has provided an opinion on, specifically as they relate to Tribal Law:

• McGirt v. Oklahoma (2020): Gorsuch wrote the majority opinion in a 5–4 decision that held that much of Eastern Oklahoma falls within an Indian reservation. The decision affirmed that land reserved for the Muscogee (Creek) Nation since the 19th century remains “Indian country” for purposes of a federal law that gives the federal government, rather than the states, jurisdiction to prosecute major crimes committed by Native Americans in Indian country.
• Herrera v. Wyoming (2019): Gorsuch joined the majority in a 5–4 decision that affirmed hunting rights for the Crow Tribe under an 1868 treaty, holding that the treaty’s hunting rights survived Wyoming’s statehood.
• Washington State Dept. of Licensing v. Cougar Den, Inc. (2019): Gorsuch joined the plurality in a 5–4 decision that held that a Yakama Nation company was exempt from a state fuel tax, citing an 1855 treaty.
• Haaland v. Brackeen: In a 7-to-2 ruling, Justice Gorsuch voted with the majority to reject 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 majority opinion and added a concurring opinion of his own.
• Lac Du Flambeau v. Coughlin: In a case concerning the applicability of bankruptcy laws to Indian tribes, Justice Gorsuch was the lone dissenter. He argued that the Constitution’s text and two centuries of history and precedent establish that tribes enjoy a unique status in U.S. law.
• Arizona v. Navajo Nation: Justice Neil Gorsuch wrote a 27-page dissenting opinion comparing the Navajo Nation’s struggle for water rights to the experience of any American who has spent time at the Department of Motor Vehicles. He illustrated the Navajos’ plight by stating that they have “tried it all,” only to be repeatedly told to “try again,” as if they have been standing in the wrong line and must find another one​.

“The Court recognizes that the Navajo “may be able to assert the interests they claim in water rights litigation, including by seeking to intervene in cases that affect their claimed interests.”

Justice Neil Gorsuch dissenting opinion on Arizona v. Navajo Nation

Read More:

• Adam Liptak, “In a Pair of Opinions, Gorsuch Again Shows His Fierce Dedication to Native American Rights,” The New York Times, June 15, 2023, https://www.nytimes.com.
• John Dossett, “Justice Gorsuch and Federal Indian Law,” Human Rights Magazine, American Bar Association, Vol. 43, No. 1, https://www.americanbar.org.
• Charles P. Pierce, “Neil Gorsuch Just Handed Down a Historic Victory for Native American Rights,” Esquire, July 9, 2020, https://www.esquire.com.

We express our deepest gratitude to Justice Gorsuch for his unwavering dedication to the cause of Native American rights and sovereignty. His work serves as a beacon of hope for the preservation and recognition of our rights, now and in the future.