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)

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Supreme Court nominee fares well in review of Indian law record

Monday, March 20, 2017

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 Appeals, 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 on Thursday.

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.

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

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. Clarke, 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 Nation 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 committee.

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.

President Donald Trump 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)