Law | Opinion | Politics

John Berrey: Indian Country's best nominee for the Supreme Court

Monday, April 3, 2017

Sen. Claire McCaskill (D-Missouri) is one of a number of Democrats who plan to vote against U.S. Supreme Court nominee Neil Gorsuch. Photo: Senator Claire McCaskill

Democrats and Republicans are preparing for a big fight as they consider whether to confirm Neil Gorsuch to the U.S. Supreme Court. Amidst the squabbling, John Berrey, the chairman of the Quapaw Tribe, explains why the nominee's background bodes well for Indian Country:

From a tribal perspective, Judge Gorsuch’s personal profile and background are just as important as his impeccable education and legal career.
. . .
This, by, itself is important because as a westerner, Judge Gorsuch understands the importance of federal lands, water, energy and natural resources to Indian tribes and all communities in the west. Sitting on the Tenth Circuit, Judge Gorsuch’s geographical scope is large and covers the states of Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming – these states alone include 76 Indian tribes.
During the hearings before the Senate Judiciary Committee, Judge Gorsuch was asked whether there was anything in his record suggesting he would not rule just for “big corporations” but would, in fact, support “the little guy.” Judge Gorsuch responded by citing three Indian law decisions he wrote which favored the tribal litigants. One of them, Ute Indian Tribe v. State of Utah (10th Cir. 2015), involved the unlawful prosecution of tribal members in state court for conduct on tribal lands. Judge Gorsuch’s decision stressed the need for federal protection of tribal sovereignty and stated that “…the harm to tribal sovereignty in this case is perhaps as serious as any to come our way in a long time.”
Another, Fletcher v. United States (10th Cir. 2013), involved efforts by members of the Osage Nation to secure an accounting of their Indian trust funds. Judge Gorsuch and the court held that the common law trust duties apply as long as consistent with congressional intent as reflected in statute. Rejecting the Interior Department’s interpretation of the Indian Trust Asset Management Act of 1994, Gorsuch invoked the Indian canon of construction to hold that “statutory ambiguities in the field of trust relations must be construed for, not against, Native Americans.”
In addition to favorable decisions on jurisdiction, tribal sovereignty and trust administration, Judge Gorsuch also authored Yellowbear v. Lampert (10th Cir. 2014), a case involving access to a prison sweat lodge by an enrolled member of the Northern Arapaho Tribe housed in a Wyoming prison. The District Court ruled in favor of prison management who claimed that providing access to the sweat lodge was too costly and burdensome. On appeal, Judge Gorsuch reversed the lower court and remanded the case instructing that the prison management’s generalized claims of cost and burdens are not enough to deny the prisoner’s access to the sweat lodge.
These are only three of Judge Gorsuch’s decisions. For the past 11 years, Gorsuch has participated in some 2,700 cases, including a number of cases involving tribal governments and tribal members.

Read More on the Story:
John Berrey: Neil Gorsuch for the High Court (Indian Country Media Network 4/3)

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