Native women rally at the U.S. Supreme Court on December 7, 2015. Photo by Indianz.Com (CC BY-NC-SA 4.0)

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Supreme Court nominee acknowledges poor treatment of 'sovereign' tribes

Wednesday, March 22, 2017

The U.S. Supreme Court hasn't always been kind to Indian Country but a federal judge from Colorado appears ready to ensure tribes will be treated fairly when they come before him.

Neil Gorsuch has served on the 10th Circuit Court of Appeals for a decade. During that time, he's sided with tribal interests in sovereignty, trust and religious freedom cases.

"Tribes are, as you know, sovereign nations," Gorsuch said on Tuesday, his first full day of questioning before the Senate Committee on the Judiciary.

"Our constitutional order affords this body considerable power in dealing with those sovereign nations by treaty and otherwise," he added, referring to the authority of the U.S. Congress to legislate in the area of Indian affairs.

During his confirmation hearing on Tuesday, and again during additional testimony on Wednesday, Gorsuch and his Republican supporters repeatedly pointed to his decisions in three key cases as a sign of his experience and fairness. In Ute Tribe v. Utah, he defended the Ute Tribe against repeated attacks by state and local officials; in Fletcher v. U.S., he backed the right of citizens of the Osage Nation to seek an historical accounting of their trust funds from the federal government; and in Yellowbear v. Lampert, he ensured a citizen of the Northern Arapaho Tribe could gain access to a sweat lodge while in prison.

"Our history with Native Americans is not the prettiest history," Gorsuch said on Tuesday as he brought up the Ute and Fletcher cases.

"As a judge, you try very hard to administer the law fairly, without respect to the persons, and equally," Gorsuch continued.

On Wednesday, Gorsuch expanded on the sweat lodge case. He said it was clear that prison officials were punishing Andrew Yellowbear, who is serving a life sentence for murdering his 22-month-old daughter, by denying him the right to exercise his religion.

"The government," he said, referring to state of Wyoming, "couldn't come up with a good reason why it couldn't provide Mr. Yellowbear with access to the sweat lodge."

The Senate Committee on the Judiciary opened confirmation hearings for U.S. Supreme Court nominee Neil Gorsuch on March 20, 2017. Photo: Sen. Chuck Grassley

The three cases aren't the only Indian law controversies that have come before Gorsuch during his time on the 10th Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming -- all states with significant Native American populations. A more comprehensive review of his record shows he ruled in favor of tribal interests 57 percent of the time.

While that rate may not appear impressive, it's far better than that of the late Antonin Scalia, whom Gorsuch has been nominated to replace. Scalia went against tribes in nearly every case and his passing in February 2016 is giving hope that the nation's highest court might treat Indian Country more fairly.

"When compared to Justice Scalia’s Indian law record, the conclusion drawn is that Indian tribes will likely have a better chance on their cases with Gorsuch on the court," the non-profit Native American Rights Fund wrote in its analysis.

Gorsuch is wrapping up his testimony on Wednesday evening but his confirmation hearing will continue for one more day on Thursday. That's when Shannon Edwards, a citizen of the Osage Nation, is scheduled to appear before the Judiciary panel.

Edwards, who serves on the Osage Nation Congress, is testifying on behalf of the American Bar Association's Standing Committee on the Federal Judiciary. She helped review Gorsuch's record and her efforts earned him a "well qualified" rating from the organization.

Despite the accolades, Democrats have been reluctant to embrace Gorsuch. They have questioned whether he will bring a more conservative tilt to the Supreme Court, whose members are often divided along party lines, and if he can remain sufficiently independent of President Donald Trump, who has been extremely critical of the judiciary.

"There is no appointment that is more pivotal to the court than this one. This has a real world impact on all of us," said Sen. Dianne Feinstein (D-California), the top Democrat on the committee.

Feinstein's concerns centered on a theme that Democrats frequently brought up since the proceedings began on Monday. They wondered whether Gorsuch will stand up for the "little guy" if he is confirmed to the nation's highest court.

Neal Katyal, a familiar face due to his work on Indian issues, including on the Tribal Supreme Court Project, told committee members that they shouldn't be worried. The former Obama administration official has argued before the justices more than 30 times -- the most recent was a tribal sovereign immunity case in January -- and he said Gorsuch will treat everyone fairly.

"As a judge, he has displayed a resolute commitment to the rule of law and the independence of the judiciary," Katyal said of the nominee on Monday. "Even those who disagree with him concede that the judge’s decisions are meticulously crafted and grounded in the law and our constitution. And when the judge believes that the government has overstepped its powers, he is willing to rule against it."

Sen. Chuck Grassley (R-Iowa), the chairman of the Judiciary panel, plans to bring Gorsuch's nomination to vote on April 3. Republican leaders then hope to schedule a full vote on the Senate a week later.

If confirmed, Gorsuch would finally fill the vacancy on the Supreme Court that was created by Scalia's passing in February 2016. The remaining eight justices have continued to hear and resolve cases although some ended up in 4-4 ties, including one in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a closely-watched tribal jurisdiction dispute.

Although the justices didn't arrive at a decision in the case, their deadlock was beneficial to Indian Country. The tie ended up affirming a lower court ruling in favor of the Mississippi Band of Choctaw Indians.

Native American Rights Fund Documents:
The Nomination of Neil Gorsuch to the Supreme Court of the United States – An Indian Law Perspective | Neil Gorsuch: Summary of Indian Law Cases