Third Way: Why Is Neil Gorsuch Such A Champion Of Native American Rights?
J. Scott Applewhite
In July of 2020, Justice Neil Gorsuch joined the four Democrat-appointed justices in a Supreme Court ruling, McGirt v. Oklahoma, determining that, for the purposes of legal jurisdiction, much of Oklahoma is actually Native American land. It was a narrow 5-4 decision. Gorsuch not only went against his fellow Republican-appointed justices on the court — he penned the opinion as well.
“On the far end of the Trail of Tears was a promise,” Gorsuch wrote. “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.”
“Today,” Gorsuch continued, “we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”
The New York Times described this decision as “one of the most consequential legal victories for Native Americans in decades.” Moreover, with this decision came a level of uncertainty regarding legal logistics — how to handle, for example, prior convictions by the state of Native Americans. Chief Justice John Roberts feared this in the dissent. But this was believed to be a far-fetched concern, and reconcilable through negotiations between state and federal officials and Oklahoma’s Native American tribes.
What makes Gorsuch’s decision even more fascinating is the timing. This was during the social unrest of the Summer of 2020, with demonstrators around the country protesting the murder of George Floyd. President Donald Trump, who at the time was running for reelection, had just delivered a 4th of July speech at Mount Rushmore — which is considered to be on land that is rightfully Native American — and he was protested for doing so. On top of all of this, the NFL’s Washington Redskins had recently begun the process of changing their name.
To those who know him, Gorsuch’s ruling on that 2020 case came as no surprise. In fact, when Gorsuch was nominated for the Supreme Court, he had the backing of Native American tribes. He has a long history of defending Native American rights. John Echohawk, a prominent Native American activist, pointed to Gorsuch’s Western roots: “He’s the only Westerner on the court. He knows these issues. He knows these tribes.” In one case, Gorsuch was the only dissenter in defense of Native Americans.
Two years later the ruling, while not overturned, would be narrowed by the Supreme Court. Gorsuch called this “grim,” and wrote that “one can only hope the political branches and future courts will do their duty to honor this nation's promises even as we have failed today to do our own.”
This was not the only significant case involving Native American rights that found its way to the Supreme Court in recent years. In June of 2023 Gorsuch sided with the Native American perspective in two cases — the aforementioned, in which Gorsuch was the lone dissenter, and another one in which Gorsuch joined a 7-2 ruling in favor of Native American rights.
How can it be that Gorsuch, unlike his Republican-appointed colleagues, is such a staunch advocate for Native Americans in the highest court?
It appears that, counterintuitively, it could be his originalist judicial philosophy — and his unique application of it — that guides him in such a manner.
He sees the Constitution as something that produces good when applied correctly. At the same time, trouble could arrive if the Constitution is deviated from. And by adhering to the original intent of the founders, many of the nation’s troubles could be solved.
The Native American issue has existed since well before the founding of the United States. Hence, the founders were able to address it directly, and indeed the Constitution requires respect for Native American rights. In other words, it is literally unconstitutional to violate their rights.
Importantly, the Constitution also granted Congress, and not the states, the power of diplomacy with Native American tribes, including the ability to agree upon treaties. One such promise was that, following their displacement known as the “Trail of Tears,” Native American tribes would be allowed control of large swaths of what would become Oklahoma.
A promise is a promise. And breaking old promises to the Native Americans, as well as disrespecting the Native American tribes more generally, was unconstitutional in Gorsuch’s eyes.
“Many of the arguments before us today follow a sadly familiar pattern,” Gorsuch wrote in his majority opinion in McGirt v. Oklahoma. “Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.”
Gorsuch’s argument rests on the power of Congress, as laid out plainly in the Constitution, to handle matters surrounding Native American relations. Circumventing this, he determined, is unlawful.
Gorsuch’s approach to Native American concerns is informative beyond this one issue as well. After all, him being an originalist and yet disagreeing so strongly with fellow originalists should have us raising eyebrows about the character of a true originalist philosophy — is such a concept actually feasible?
One may certainly disagree with Gorsuch’s decisions on other matters of political and social interest. But one cannot help but admire his principled stance as he emerges as one of the strongest advocates for Native Americans to ever hold a seat on the Supreme Court.