Bruce Ignacio, seated on far right, a council representative for the Ute Tribe, gives "thumbs up" to U.S. Supreme Court nominee Neil Gorsuch at the winter session of the National Congress of American Indians in Washington, D.C., on February 14, 2017. Photo by Indianz.Com (CC BY-NC-SA 4.0)

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Tribes find common ground with Donald Trump on Supreme Court nominee

Friday, February 17, 2017

It's been a rocky start for Indian Country and the new Trump administration but some common ground is emerging in a surprising area.

In one of his first major actions, Republican President Donald Trump nominated Neil Gorsuch to fill the vacancy on the U.S. Supreme Court. Tribes and their advocates are welcoming the choice with open arms due to the judge's favorable experience with Indian law.

"Judge Gorsuch has been very instrumental in protecting tribal sovereignty," Bruce Ignacio, a council representative for the Ute Tribe, said in Washington, D.C., this week.

Hundreds of attendees of the winter session of the National Congress of American Indians fell to a hush as Ignacio explained how his tribe has been fighting encroachments by state and local officials in Utah for decades. Gorsuch, as a judge on the 10th Circuit Court of Appeals, has rebuffed those efforts with strong and striking opinions that have safeguarded his people's homelands, he said.

A slide presentation at the winter session of the National Congress of American Indians in Washington, D.C., displays the opening paragraph to Judge Neil Gorsuch's ruling in Ute Tribe v. Myton, a sovereignty case. Photo by Indianz.Com (CC BY-NC-SA 4.0)

But Gorsuch's attention to the dispute -- which stretches back 40 years -- resulted in victories in other concrete ways, Ignacio said. After last summer's blockbuster ruling in which the 10th Circuit once again refused to diminish the boundaries of the Uintah and Ouray Reservation, the higher court removed the federal judge who had been handling the case since 1978.

The decision, which didn't come without some serious pushback, proved instrumental in the tribe's eyes. "For us, going into court year after year and being humiliated by a federal judge, it was difficult," Ignacio said on Tuesday.

"He would have been as racist towards any one of you as he was toward us," Ignacio asserted of the judge who had been on the case.

"Knowing that, and understanding that Gorsuch understands Indian and is willing to study Indian law, I give him thumbs up," Ignacio added.

John EchoHawk, the executive director of the Native American Rights Fund, offers an update on the U.S. Supreme Court at the winter session of the National Congress of American Indians in Washington, D.C., on February 14, 2017. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Aaron Payment, the chairman of the Sault Ste. Marie Tribe of Chippewa Indians, was equally impressed with Gorsuch's record, which includes favorable rulings on Indian religious freedom and the federal trust responsibility. He said no other nominee to the nation's highest court has been as well versed with Indian law as Trump's pick.

"Even though there have been some justices on the Supreme Court that have been favorable, in the end, they had to get there," Payment said. Judge Gorsuch, on the other hand, is already there when it comes to sovereignty and other key issues, he said.

"I'm excited about it," Payment said of the possibility that Gorsuch can "educate" his colleagues about those issues should be be confirmed as a justice.

Gorsuch joined the 10th Circuit in 2006 and quickly showed signs of his willingness to learn about Indian Country. He attended an NCAI event in 2007 and John EchoHawk, the executive director of the Native American Rights Fund, believes that put the judge on a path that sets him apart from others on the federal bench.

"As far as anyone Trump could have nominated," EchoHawk said at NCAI, "I don't think he could have come up with anybody much better than Judge Gorsuch."

A slide presentation at the winter session of the National Congress of American Indians in Washington, D.C., displays Judge Neil Gorsuch's Indian law record on the 10th Circuit Court of Appeals and includes a note of comparison to Judge Merrick Garland, a judge on the D.C. Circuit Court of Appeals who had been nominated to the U.S. Supreme Court by former president Barack Obama. Although both courts hear significant Indian law cases, the 10th Circuit tends to hear a larger number of Indian law cases overall due to the number of states it covers. Photo by Indianz.Com (CC BY-NC-SA 4.0)

John Dossett, NCAI's general counsel, pointed out that Gorsuch listed Yellowbear v. Lampert as one of the 10 most significant cases of his career. In a January 2014 decision, the judge concluded that state prison officials in Wyoming were wrong to deny Andrew Yellowbear, a citizen of the Northern Arapaho Tribe, access to a sweat lodge.

"Judge Gorsuch has a very good track record," Dossett said. Based on a review of other cases, Dossett said tribal interests won 85 percent of the time when they went before Gorsuch on the 10th Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming, all states with significant tribal populations.

Gorsuch will get a chance to talk about his record, as well as his judicial philosophy, when he goes before the Senate next month for his confirmation. It's scheduled to begin March 20 and the proceedings are expected to last three to four days.

"Judge Gorsuch has met every demand placed on him by [Democrats]. He’s a mainstream judge. He’s displayed independence. He’s met with dozens of senators who have nothing but positive things to say," said Sen. Chuck Grassley (R-Iowa), who serves as the chairman of the Senate Committee on the Judiciary.

The Supreme Court has been operating with just eight justices following the death of Antonin Scalia in February 2016. Republicans in the Senate refused to consider former president Barack Obama's replacement because they wanted to wait until the outcome of the November election.

Democrats are still bothered by what Sen. Heidi Heitkamp (D-North Dakota) called a breach in "tradition and historical precedent. " But Republicans control the Senate and they can easily approve any of Trump's nominees by a majority vote.

Heitkamp, who sits on the Senate Committee on Indian Affairs, said she and Gorsuch "talked about Indian law and treaties, fixing our criminal justice system, and empathy on the bench—a fundamental trait when the poor and underprivileged in North Dakota and beyond don’t have the same access to the courts as those who are better off" during a meeting last week.

Tribes pay close attention to the Supreme 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," Echohawk told tribal leaders shortly after Scalia's passing last year. John Roberts serves as chief justice of the court.