Justice Gorsuch Ties Originalism to Defense of Tribal Rights

Justice Neil Gorsuch linked his originalist legal philosophy to the reputation he’s developed on the US Supreme Court as a consistent defender of Native American rights.

Gorsuch, who authored a landmark 2020 opinion on tribal sovereignty, noted on Saturday that he became steeped in federal Indian law while serving for a decade as a judge on the Denver-based US Court of Appeals for the Tenth Circuit, which covers a large part of the West.

But in his public remarks at a conference organized by the American Revolution 250 Commission in Williamsburg, Va., Gorsuch acknowledged that fact doesn’t fully explain why he cares about Indian law “so deeply.”

“And that has to do with, I’m an originalist, OK,” he said. “I’m not afraid to call myself that,”

Gorsuch, who was appointed to the Supreme Court in 2017 by President Donald Trump, is one of several justices on the conservative-dominated court who identify as an originalist, which holds that laws must be interpreted based on their original intent.

“When it comes to Indian law, that leads to certain conclusions,” Gorsuch said. “But the original bargain struck in the Constitution is that tribes are sovereigns. They’re treated just like other sovereigns, they’re paired in the Commerce Clause with states and foreign nations.”

“And there’s a treaty clause on how to interact with them,” he added. “If you’re an originalist, you say, huh, how about that? Maybe we should do that.”

Gorsuch argued that the Supreme Court has over time been tempted to move away from some of its “original promises,” in the process creating precedents that become hard to undo.

He also cracked that some of his colleagues from New York and New Jersey may be more familiar with the federal racketeering statute. A judge less accustomed to federal Indian law therefore might be more drawn to maintaining past precedent or turning to the common law, he said.

Gorsuch in 2020 authored the court’s 5-4 opinion in McGirt v. Oklahoma that affirmed the reservation status of the Muskogee Creek Nation as Indian Country under a 19th-century treaty.

He later voted with a majority in 2023 in a ruling that rejected a challenge to a 1978 statute that gave preference to Native Americans in adopting and fostering American Indian children, in Haaland v. Brackeen.

In a concurring opinion, he wrote the ruling “safeguards the ability of tribal members to raise their children free from interference by state authorities or other outside parties.”

That same year, he dissented when the court, in Arizona v. Navajo Nation, sided 5-4 against the tribe’s legal bid to secure water in the drought-stricken Southwest. In his dissent, Gorsuch argued the case was based on an 1868 treaty that gave the Navajo enforceable water rights.