Tribes and their advocates have already praised U.S. Supreme Court
nominee Neil Gorsuch
and a new analysis reveals the strength of his Indian law experience.
During a decade on the 10th Circuit Court of
, Gorsuch participated in at least 39 Indian Country cases, according to a comprehensive review conducted by the Native American Rights Fund
. He wrote 17 opinions in those cases, a record that appears to be unprecedented.
"Judge Gorsuch has significantly more experience with Indian law cases than any other recent Supreme Court nominee," the non-profit wrote in a memo to tribal leaders and lawyers
Of the 39 cases, NARF identified 28 as dealing with significant Indian law questions, ranging from sovereign immunity to tribal jurisdiction to the federal trust responsibility. Tribal interests won 16 of those cases, representing a win rate of 57 percent.
While that rate may not appear impressive, it's far better than that of the late Antonin Scalia
, whom Gorsuch would be replacing on the nation's highest court. Scalia went against tribal interests in nearly every case and his passing in February 2016
is giving hope that a new era might be emerging in Washington, D.C.
"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," NARF wrote in its analysis.
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
Gorsuch's record will be on display as he goes before the Senate Committee on the Judiciary for his confirmation hearing
on Monday. In fact, he is being introduced a familiar face in Indian law circles -- Neal Katyal
, a former Obama administration official who represents tribes as part of his and argued a sovereign immunity case
at the Supreme Court in January.
While Gorsuch won't be ruling on Lewis v.
, he is well-versed in the underlying issue in the case. According to NARF's review, he sided with tribes in 5 out of 6 immunity cases, representing an extremely stunning win rate for Indian Country.
Although it's impossible to predict how Gorsuch would handle similar cases if he is confirmed, other tribal advocates believe his record provides clarity. Thomas W. Fredericks
, a prominent attorney from the Mandan, Hidatsa and Arikara
whose law firm has appeared before the nominee four times in the past two years, said Gorsuch brings a unique and welcome perspective to the bench.
"Our other observation is that, unlike most justices for the past century, Judge Gorsuch has knowledge gained from living in and working in a circuit which has Indian Country and strong tribal governments," Fredericks wrote in a letter on Thursday to the Judiciary
The 10th Circuit covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming -- all states with significant tribal populations. Gorsuch is from Colorado and would be among just a handful of Westerners to serve on the Supreme Court in the last couple of decades.
"At least with Judge Gorsuch, I believe that tribes will receive fair consideration and respect," Fredericks wrote.
If confirmed by the Senate
, Gorsuch would finally bring the Supreme Court back to its full slate of nine justices. The court has been operating with just eight members following Scalia's death last year.
nominated Gorsuch on January 31, less than two weeks after taking office.
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
Senate Committee on the Judiciary Notice:
Nomination of the Honorable Neil M. Gorsuch to be an Associate Justice of the Supreme Court of the United States
(March 20, 2017)
Join the Conversation
administration given more time for appeal in tribal gaming case
administration backs Cowlitz Tribe in Supreme Court brief
Court turns down another tribal disenrollment dispute
find common ground with Donald Trump on Supreme Court nominee
Trump's Supreme Court nominee well versed in Indian law
team gets more time on Supreme Court tribal casino case
ready to announce nominee for Supreme Court vacancy
Court declines petition in Indian Child Welfare Act case