President Donald Trump introduces U.S. Supreme Court nominee Neil Gorsuch and his wife, Marie Louise Gorsuch, at the White House on January 31, 2017. Photo: POTUS

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Donald Trump's Supreme Court nominee well versed in Indian law

Wednesday, February 1, 2017

Republican President Donald Trump is striving to maintain the conservative lean of the U.S. Supreme Court by filling a vacancy left by the death of Justice Antonin Scalia.

But Trump's nominee for the nation's highest court, announced from the White House on Tuesday night, has fared much better on Indian matters than Scalia ever did. Neil Gorsuch, a federal appeals court judge, has sided with Indian interests in several key cases, bringing a more favorable record to the table than the conservative legal hero he stands to replace.

"I believe he has demonstrated his passion and compassion where Native rights and claims are concerned," attorney Amanda Proctor, a citizen of the Osage Nation, said of Judge Gorsuch after the announcement.

Proctor serves as co-counsel in Fletcher v. United States, an Indian trust case that has gone before 10th Circuit Court of Appeals twice so far. As a judge on the court, Gorsuch was the author of a landmark September 2013 decision that affirmed the right of Osage beneficiaries to seek an accounting of their trust funds.

"If any doubt remains (and we harbor none) ... statutory ambiguities in the field of trust relations must be construed for, not against, Native Americans," Gorsuch wrote in the 22-page ruling, referring to an Indian law principle that courts use to ensure that the rights of tribes and their citizens are protected even if the federal government, as their trustee, argues otherwise.

Despite Gorsuch's seemingly strong directive, the government is still balking at providing the historical accounting owed to Osage beneficiaries. The Department of Justice has filed another appeal that will bring the case to the 10th Circuit a third time -- oral arguments take place March 22.

But Gorsuch is no stranger to repeated trips by parties in his courtroom. In another long-running dispute, he delivered a stinging blow to officials in Utah who have repeatedly challenged the sovereignty of the Ute Tribe.

Even though the 10th Circuit has repeatedly ruled that the Uintah and Ouray Reservation has not been diminished, state and local officials refuse to recognize the tribe's jurisdiction and authority. Gorsuch's August 2016 decision noted that the tribe has basically won the case seven times in the last 40 years.

"Over the last forty years the questions haven’t changed — and neither have our answers. We just keep rolling the rock," Gorsuch wrote in the 18-page ruling.

Yet the battle isn't over. Despite losing the case, the city of Myton has asked the Supreme Court to overturn the decision although Gorsuch would have to recuse himself from the matter should he be confirmed by the Senate.

Republicans are already moving forward with Gorsuch's nomination, a privilege they did not afford to former president Barack Obama's choice last year.

“Following the death of Justice Scalia as Americans were beginning to cast their votes for the next President, I said that we’d move forward with the next President’s nomination to the Supreme Court, regardless of who won," Sen. Chuck Grassley (R-Iowa), the chairman of the Senate Committee on the Judiciary, said in a statement. "The President has made his selection and that’s what we’ll do.”

Gorusch was confirmed to the 10th Circuit in 2006 by a voice vote, drawing no objections from Democrats. But the process will be different this time, given the high political stakes.

"In light of the unconstitutional actions of our new President in just his first week, the Senate owes the American people a thorough and unsparing examination of this nomination," Sen. Patrick Leahy (D-Vermont), the top Democrat and former chairman of the Judiciary committee, said in a press release.

The Supreme Court has just one Indian law case on the docket for its current term. Oral arguments in Lewis v. Clarke, whose outcome will determine whether a tribe's sovereign immunity protects an employee, took place January 9. A decision is expected before June.

Tribes pay close attention to the nation's highest court because the decisions carry significant impacts in their communities. Up until Scalia's death, a conservative-leaning majority consistently delivered defeats on taxation, sovereignty, land-into-trust and Indian Child Welfare Act issues over the last decade.

"Since 2006, under John Roberts, there's been 11 Indian cases decided by that court and we have won only two of those cases," John Echohawk, the executive director of the Native American Rights Fund, told tribal leaders shortly after Scalia's passing last year. John Roberts serves as chief justice of the court.

10th Circuit Court of Appeals Decision in Osage Trust Case:
Fletcher v. US (September 17, 2013)

10th Circuit Court of Appeals Decision in Ute Tribe Case:
Ute Tribe v. Myton (August 9, 2016)