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Gorsuch Crossover Vote Leaves Tribes Cautiously Optimistic

March 19, 2019, 7:48 PM

Justice Neil Gorusch may prove to be a reliable vote for tribal groups coming before the U.S. Supreme Court.

Gorsuch sided with his four more liberal colleagues March 19 in finding that an 1855 treaty between the federal government and the Yakama tribe precluded Washington state from imposing a fuel import tax on tribal-owned businesses.

“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,” Gorsuch wrote in his concurrence in Washington State Department of Licensing v. Cougar Den.

Gorsuch’s record in tribal cases while a judge on the U.S. Court of Appeals for the Tenth Circuit, which encompasses six western states and 76 federally recognized Indian tribes, was generally favorable to the tribes, said Colette Routel, who heads the Indian Law Program at Mitchell Hamline School of Law.

In fact, his background in tribal cases won him the support of the National Congress of American Indians during his confirmation hearing.

It’s exactly what tribal groups hoped for when Gorsuch was confirmed, said Arizona State University law professor Robert Miller, who also serves as the chief justice of the Court of Appeals for the Grand Ronde Tribe.

Gorsuch is frequently cited as the only current justice to hail from the West, though Justice Stephen Breyer is from California. He was the first justice ever to hire an American Indian Supreme Court clerk.

Elizabeth Kronk Warner, of the Tribal Law and Government Center at the University of Kansas School of Law, noted that Gorsuch hasn’t “yet had the opportunity to vote in many Indian cases pending in the Supreme Court,” making it hard to predict how he’ll vote in the future. But his deciding vote Tuesday in the 5-4 case on treaty rights bolsters his tribal bonafides.

Last term, Gorsuch wrote for the court’s 7-2 majority in reversing a lower court ruling that limited the reach of tribal sovereign immunity.

And his questions during another treaty rights case seemed favorable to the tribe. But the court ended up splitting 4-4 in that case, affirming the lower court’s ruling without comment.

The Supreme Court has been considering more tribal cases in recent terms, and has heard three cases in this one.

The result is that the “number of Indian law cases typically heard by the Supreme Court is generally disproportionate to the Indian population within the United States,” Warner said.

Ideological Lines?

Tribal cases don’t always fall along ideological lines, Warner said. She said Justice Ruth Bader Ginsburg “has voted against tribes and tribal interests on numerous occasions.”

These votes are likely the result of the justices’ lack of familiarity with Indian law, Routel said.

They tend to be swayed by their thoughts on the “other” issue in the case, be it taxes or civil procedure, Routel said.

Miller, though, said that in broad terms, there is an ideological element to Indian law cases.

He said that under the court led by Warren Burger, which delivered a number of victories to liberals, tribes prevailed in 58 percent of their cases. That number plummeted to 20 percent under conservative Chief Justice William Rehnquist and has perhaps gotten worse under John G. Roberts, he said.

At one point, tribes had only won one out of 10 Indian law cases under the Roberts court, Miller said.

Wait and See

While Indian tribes are “cautiously optimistic” about Gorsuch’s vote, Routel said the newest justice, Brett Kavanaugh, is more of a mystery.

Like most other Supreme Court nominees, Kavanaugh didn’t have any significant experience in Indian law cases while on the D.C. Circuit, said Joel Williams, of the Native American Rights Fund.

Gorsuch is unusual in that he’d heard about 30 Indian law cases while on the Tenth Circuit, Williams said. That’s “far and away more experience in Indian law cases” than any nominee in decades, he said.

And while Justice Sonia Sotomayor has emerged as a reliable vote for tribes on the Supreme Court, you couldn’t have predicted that from her record on the Second Circuit, Routel said.

So we will just have to wait and see how Kavanaugh’s votes shake out, Williams said.

Routel noted that Kavanaugh’s questions during oral argument in the treaty case were favorable to the tribe, but he ended up voting against it.

Tribes will know more about where they stand with the new justices once the final two tribal decisions of the term are released.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at